Monday, May 20, 2019

Murray v. BEJ Minerals (9th Cir. - May 20, 2019)

I discussed last year the Ninth Circuit's opinion about whether dinosaur fossils are "minerals" under relevant legal principles.  The Ninth Circuit took the case en banc, and today, it decides to let the Montana Supreme Court resolve the issue.

The fossils have been there for a while.  Resolving their ownership will take a little bit longer than anticipated.

Paxton v. Board of Administration (Cal. Ct. App. - May 20, 2019)

Government work is tough:

"The Department of Social Services is the state agency responsible for determining, through its Disability Determination Service Division, the medical eligibility of disabled Californians who are seeking federal Social Security benefits or state Medi-Cal benefits. Paxton is a medical consultant-psychiatrist who reviews claims for the federal program. . . . These consultants are expected to be at work for “core hours,” which are 9:00 a.m. to 11:30 a.m. and 1:30 p.m. to 2:30 p.m., and to average 40 hours per week, but otherwise they have flexibility in deciding when they work.

The Department of Social Services has suffered from periodic backlogs of disability review cases in the federal program. In 1993, the Department of Social Services received an exemption from the Department of Personnel Administration1 to temporarily pay overtime to consultants to deal with the pending cases even though they are salaried employees and such payments are inconsistent with the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.). The Department of Personnel Administration granted the temporary exemption with the expectation that the Department of Social Services would adopt an alternative to paying overtime.

In 1996, after a second request for an exemption was denied, the Department of Social Services proposed requiring consultants to work extra hours without compensation due to the extra workload and their classification as professional employees exempt from overtime and for whom “[t]he regular rate of pay is full compensation for all time that is required for the employee to perform the duties of the position.” The union representing the consultants rejected this proposal “out of hand.” The Department of Social Services and the union thereafter agreed to a voluntary bonus program “for processing additional workload.” Under the bonus program, consultants would be paid for each case closed above a certain threshold per week. . . .

Paxton participated in the bonus program from 2005 until it ended. During that period, consultants were paid $27 per case after 90 cases per week. The trial court found that “[t]he 90-case threshold was not hard to exceed in part because the threshold never was adjusted to account for increased efficiencies occasioned by computerization of the records and use of more experienced analysts.” Paxton and two retired consultants testified that they did not work more than 40 hours per week. Paxton was able to earn significant bonuses by spending an average of only five minutes to review a case.2 At this rate, he surpassed the weekly threshold for achieving a bonus in about a day and a half. As a result, he earned over $1.2 million in bonuses. In 2010, a particularly lucrative year, his monthly bonuses ranged from $16,821 to $39,501, more than three times his monthly salary. Paxton still works for the Department of Social Services."

Thursday, May 16, 2019

Columbo v. Kinkle, Rodiger & Spriggs (Cal. Ct. App. - May 16, 2019)

Sometimes, to briefly state the facts of the case is sufficient itself to state the appropriate holding:

"A vexatious litigant’s request to sue his attorneys for legal malpractice was denied by the superior court, as was his motion for reconsideration of that request. This court denied extraordinary relief. Undaunted, the vexatious litigant asked a different presiding judge to give him leave to file the identical legal malpractice complaint. This time, his request was granted and the current action was filed."

Yep.  That's enough to know how this one should (and does) come out.

"As a matter of both substantive legal doctrine and fundamental fairness, litigants are only entitled to one bite at the apple. But this vexatious litigant refuses to stop biting. We conclude the doctrine of res judicata precludes a litigant from filing successive prefiling requests, and therefore, we affirm the judgment."

Wednesday, May 15, 2019

County of Los Angeles v. Hoa (Cal. Ct. App. - May 15, 2019)

"Beginning in 2010, and as a result of a serious medical condition, Hoa took a number of extended medical leaves from work. In early 2013, Hoa believed, and her doctor reported, she was able to return to work with workplace accommodations. When Hoa reported for work, however, the County did not allow her to work. Instead, under Rule 9.07B, the County required Hoa to submit to a medical reevaluation, which she did in May 2013. . . .

A County clinical psychologist with Occupational Health Programs conducted the medical reevaluation. The psychologist determined Hoa suffered from a “chronic and persistent psychological condition” that had “caused her to miss an extraordinary amount of time from work over the past several years.” The psychologist also reported that, when at work and “despite numerous accommodations that the department has made (such as assigning [Hoa] only a small fraction of the caseload that other co-workers carry), [Hoa’s] performance has been unsatisfactory and punctuated by complaints from participants.” As a result of the May 2013 medical reevaluation, Occupational Health Programs determined “Hoa’s psychological condition impairs her ability to think clearly or carry-through with an activity. From a practical standpoint, she is unable to effectively interact with others or in situations that require her to perform even the most rudimentary tasks. Due to the severity of her illness, Ms. Hoa is unable to perform any of the essential job duties of her current, or any other, position presently and in the foreseeable future.”"

Thus began a series of hearings, motions and litigation that progressed for another six years, ending only today, when the Court of Appeal reverses the decision below and holds Ms. Hoa not entitled to any relief.

The public sector is often quite different than the private sector. 

Tuesday, May 14, 2019

County of Orange v. Seneca Ins. Co. (Cal. Ct. App. - May 14, 2019)

I'm glad the Court of Appeal published this opinion.  Not just because it's correct on the merits, as it surely is.  But because it implicitly publicizes a limitation on the enforcement of certain judgments that seems bizarre to me, and that I think the Legislature should abrogate.

A surety posts a bond for a criminal defendant, and the guy doesn't show.  So the bondsman is liable on the bond, and is ordered to pay the $100,000 bond.  The bondsman doesn't.  Simply doesn't pay.

Which, ordinarily, would lead to rapid enforcement action, etc.  But, here, for whatever reason, the County of Orange doesn't seem to be particularly worried.  Years go by with no attempt to force the surety to pay.

Here's the crazy (to me) thing:  Apparently there's a statute (Section 1306) that says that you can't enforce a judgment on a bond after two years.  (“The right to enforce a summary judgment entered against a bondsman pursuant to this section shall expire two years after the entry of the judgment.”)  Which just seems to me a crazy short period.  For a regular civil judgment, you've got like 10 years to enforce it.  Why the government should have a shorter time period -- for a debt arising in a criminal case, no less, with its corresponding public policy implications -- is simply beyond me.

Maybe there's a secret reason behind Section 1306 that I can't presently fathom.  But unless someone persuades me otherwise, were I a member of the Legislature, I'd almost definitely vote to amend Section 1306 to extend the time limit of two years to, like, ten.  (Unless, of course, the various sureties and their lobbyists paid me a substantial bribe; err, I mean, contributed to my campaign.)

Ultimately, here, the Court of Appeal enforces a different statue, which states -- totally reasonably, IMHO -- that if a surety has an unpaid judgment against it, it can't be a surety in the interim.  Totally fair.

But in the perfect (or at least better) world, the surety would be precluded from writing new bonds and have to pay the $100,000 it owes.  Rather than just change its name, get a new license, and then go back to writing bonds that it has no intention of ever paying.

Hopefully someone in the Legislature will eventually pick up on this.

Monday, May 13, 2019

Front Line Motor Cars v. Webb (Cal. Ct. App. - May 13, 2019)

It's too bad that the DMV can't do more to punish the used car dealer -- Front Line Motors -- in this case.  But at least it conditionally revoked the dealer's license for two years, and the Court of Appeal affirms.

It's the kind of used car dealer you love to hate.  The facts:

"Twyla Davis purchased a car from Dealer. At Dealer’s office, Davis applied for financing from First Credit Finance (Financier). Davis paid a $2,000 down payment and was obligated under the retail installment sale contract to pay an additional deferred down payment of $500 two weeks later. One week after Davis signed the contract, Dealer told her she was to return the car because financing had been denied. Three or four days after hearing from Dealer, and on the same day she received the declination letter from Financier, Dealer repossessed the car. Davis asked Dealer to refund her down payment. Dealer refused, telling Davis she would have to sue Dealer in court for the money.

Zaneicesha Phillips paid Dealer a $3,800 down payment and was obligated under the retail installment sale contract to pay an additional deferred down payment of $500. She had constant mechanical trouble with the car and tried to return it, but Dealer refused, saying the deal was “finalized.” After the car was repossessed and Dealer’s manager told Phillips the loan was denied, Phillips requested a refund of her down payment. The manager “laughed and said, ‘No way, . . . your loss . . . take us to court.’”

As you can probably imagine, the people whose down payments were wrongfully retained were not individuals with money to burn.  They're vulnerable people buying used cars.  To laugh at them as you take their down payment adds insult to injury.

As the Court of Appeal says:  "Here, Dealer’s conduct confirms our worst stereotype of used car salesmen. Unabashedly, Dealer repossessed the cars in question, resold the vehicles to new buyers, retained Davis’ and Phillips’ entire down payments despite the women’s entreaties for the money’s return, and challenged the women to sue it in court."

Here's hoping that entities like Front Line Motors go out of business permanently.

Thursday, May 09, 2019

In re H.D. (Cal. Ct. App. - May 8, 2019)


The little kids want to be with stepmom, who's taking care of them now, but biological mother ("Mother") wants them too. Mother lost the kids when she was addicted to meth, at which point Father got custody.

What to do?

The dispositive factual question is whether Mother ever "abandoned" the kids.  The trial court thought she did.  Over a year ago, she tried to talk to the kids, but she was addicted then, and Father didn't let her.  So then Mother tries to get clean, and for over a year, doesn't talk to the kids, doesn't reach out to the kids, doesn't pay child support, etc.

The trial court thinks that's abandonment.

The Court of Appeal reverses.

You can see where the Court of Appeal's coming from.  It's harsh (and counterproductive) to say that a parent "abandons" their kids just because they're in treatment.  We don't want that.  We want parents to get clean.

So the Court of Appeal says that's reasonable, and wasn't "abandoning" the kids.

But I can also see why the trial court might have come out the other way.  It's not like Mother was in an inpatient facility for an entire year.  During the year and a half she had no contact with the kids, she was in residential treatment for a sum total of 30 days.

Yes, she did six months of sober living after that, then another six months of outpatient treatment.  But it's not like Mother was incapable of at least trying to contact her kids during that period.  You can still write letters, or make telephone calls, or send a $5 bill on a kid's birthday even when you're living in a sober living home, or doing the occasional outpatient therapy.  You've got an entire life to live.  Sure, you may be primarily focused on staying sober.  But that doesn't mean that you can just ignore your kids, or that it's impossible to (at least try to) reach out.  Particularly if it's true that you are in fact clean and sober during this entire year.

Now, it'd be one thing if Mother was laser-focused on sobriety during this entire year-long period.  I could see a court saying that if you're really spending every waking moment on sobriety, that doesn't mean you're ditching your kids during this period.

But during this year-long period, Mother meets a guy, gets engaged, and gets pregnant.  So clearly she's spending some time not focusing exclusively on sobriety, and instead on developing and nurturing human relationships.  If you've got time to spend on a new guy -- no small interpersonal task -- you've got time to spend on your kids, no?

Or at least I could imagine a trial court rationally seeing it that way.  Having actually seen and evaluated the participants in this process and their veracity, as opposed to merely viewing a cold appellate record.

So this may be one of those cases where the standard of review might actually matter.  I could see a trial court saying, you know what, sure, she could have reached out to the kids during that year and a half, and, yeah, she was doing a lot of outside things apart from merely staying sober, but I still think she always thought about the kids and planned on getting back with them.

But I could also see a trial court concluding otherwise; that during that 18-month period, she simply didn't care about her existing kids, and was more focused on herself and her new relationship and did nothing at all -- deliberately -- with respect to those children, thereby abandoning them.  At which point we're free to give the kids to their Father and the parents to which they've grown accustomed and consider their family.

But the Court of Appeal thinks there's only one conclusion to be drawn from the undisputed facts.

As I started out:  Maybe.

Maybe not.

Wednesday, May 08, 2019

Cedar Point Nursery v. Shiroma (9th Cir. - May 8, 2019)

Judge Paez's majority opinion today is spot on.

In California, a union can potentially get access to seasonal agricultural workers (e.g., to try to unionize them) by giving notice to the employer that they want to go on the field for an hour before work and/or an hour after work to talk with the workers.  The theory behind this rule is that it's often hard to otherwise gain access to these employees, who (necessarily) often work in different fields on different days, etc.

The plaintiffs in this case are employer/landowners who claim that this California regulation is an unconstitutional per se taking.  On the theory that it's authorizes an express trespass on their land.  So, they say, they're entitled to compensation.

I'm somewhat sympathetic to this position, at least as a purely legal matter.  It is, after all, a trespass, and it's definitely their land.  Just as I wouldn't want a stranger coming on my land, I can get why an employer doesn't necessarily want strangers coming on theirs.  The right to exclude being a huge part of the relevant bundle of sticks, as it were.

But here's the thing:

Plaintiffs bring a claim for a per se taking.  That's a big deal.  Only particular types of things are per se takings.  The first is “where government requires an owner to suffer a permanent physical invasion of her property--however minor."  But the regulation at issue definitely isn't a permanent physical invasion of property.  It's limited in time (an hour before and after work) as well as frequency (four times a year).  Clearly that's not a permanent physical invasion.  The other type of per se taking is when a governmental act “completely deprives an owner of ‘all economically beneficial us[e]’ of her property.”  That too is obviously inapplicable here, since the landowner can (and does) still use the property to productively farm notwithstanding the temporary intrusion.

Everything else may potentially be a "regulatory taking" that's subject to mandatory compensation, but it's governed by a different legal test.  It's not per se.  And plaintiffs make it crystal clear that they are only interested in bringing a per se claim, and refuse to amend their complaint to allege anything less.

Okay.  So be it.  Maybe there's a regulatory takings claim.  Though, on that test, the limited nature of the intrusion -- and the public interest in favor of it -- maybe not.  But if that claim -- the one that may perhaps have legal merit -- isn't one that the plaintiffs are interested in bringing, then this case should be resolved exactly as Judge Paez does.  Notwithstanding Judge Leavy's dissent to the contrary.


Monday, May 06, 2019 v. DoubleVerify, Inc. (Cal. Supreme Ct. - May 6, 2019)

This is one of those (rare) days in which there's stuff from the appellate judiciary in California but not much exciting stuff.  Or at least not much that's particularly exciting to talk about.  We'll see if the Court of Appeal publishes something this afternoon that's the exception to today's rule.

In the meantime, at a minimum, this opinion from the California Supreme Court is worth at least knowing about.  It's an anti-SLAPP appeal that holds that you can consider the "context" of the underlying speech -- e.g., that it's commercial speech -- in deciding whether it qualifies as "conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest” under the "residual" anti-SLAPP provision in Section 425.16(e)(4).

That doesn't mean that no commercial speech is covered.  But in "evaluating" whether subsection (e)(4) applies, the California Supreme Court basically says that you can look at everything.  Everything. So go ahead and do so.

A narrow but nonetheless important part of California's evolving anti-SLAPP jurisprudence.

Friday, May 03, 2019

People v. Salcido (Cal. Ct. App. - May 3, 2019)

When you're reviewing a conviction for sufficiency of the evidence, the deference given to the factual findings below is fairly significant.  For that reason, on the merits, I'm not sure that this opinion is wrong.

The language (and approach) that Justice Ramirez employs nonetheless seems a little bit strong.

It's an unsophisticated defendant, Sara Salcido, who's acting as an "immigration consultant" even though a formal immigration consultant has to jump through various hoops to be licensed.  Ms. Salcido is "helping" immigrants get green cards, etc., except that at least in several cases, it appears that she's simply taking their money and not doing much actual work (e.g., not filing the relevant papers).  So the state charges her not only with the relevant crime of "unlawfully engaging in the business of an immigration consultant, a misdemeanor," but also with grand theft -- a much bigger deal.

Fair enough.  She's arguably guilty of those offenses, and the trial court so found.

But one of the big sticking points of those offenses is that the government had to prove that Ms. Salcido had fraudulent intent.  Here's what Justice Ramirez says about that:

"The trial court could also reasonably find fraudulent intent. . . . At the preliminary hearing, she testified: “Q. . . . [Y]ou’re aware that the State of California requires you to pass a background check, right? “A. I didn’t know about that until 2015. “Q. And you’re aware that you’re also required to have a $100,000 bond on file; correct? [¶] . . . “[A.] Yes, I read about that. “Q. . . . You did know that? “A. Yes.” Because she carefully specified when she learned about the background check requirement, but she did not specify when she learned about the bond requirement, it is fairly inferable that she knew about the bond requirement at all relevant times."

Respectfully, that's not the inference (at all) that I would draw from that testimony.  Nor is it how normal people talk -- or what they mean -- when they say what Ms. Salcido says.

They asked her if she knew about the background check, and she said that she knew about it now, sure (she had, after all, been criminally charged with it by that point), but volunteered that this was something she had just learned, and didn't know about it until 2015.  They then immediately asked her about the closely bond related requirement, and she she said that she "read about that" as well.  But didn't at that point spontaneously re-volunteer the words that she had just said -- that this was something she had read about now, but didn't know before 2015.

You could draw the inference that because she didn't restate the same thing that she had just stated seconds ago, she was deliberately drawing a distinction between the two.  But I don't think that's how normal people talk -- much less what Ms. Salcido actually meant.  She made the point that, yes, she knew about the relevant rules now, but said she didn't know about them before.  Then she was asked about a different (related) rule, and she said, yeah, again, she's "read about that," just like she read about the background check thing.  I think it's plausible -- indeed, likely -- what what she meant was to say that, yes, she read about that, just like she read about the other thing, but not until recently.  I don't think she meant to admit -- as the Court of Appeal basically holds -- that she at all times knew about the bond (but not the background check), and hence was confessing her guilt.  I think she just didn't feel the need to repeat the same point that she had volunteered just a second or two previously.

Nor did the prosecutor bother to ask her:  "So, you say you didn't know about the background check until 2015, but you admit that you knew about the bond requirement before then, right?"  For good reason.  Since I'm fairly positive that Ms. Salcido would have said:  "No, I learned about both of them at the same time, when I read about them in 2015.  That's what I meant."

To me, it might be a permissible inference -- one that a skeptical factfinder that disbelieved Ms. Salcido might well come to -- that she knew about the one requirement (or both) before 2015.  But I don't think that, as Justice Ramirez says, that Ms. Salcido's claim "at trial . . . that she did not learn that she needed a bond until September or November 2013" was "contradicted" by her testimony about the background check.  Seems to me like she was just speaking loosely.

Like normal people often do.  Particularly when they're under stress; e.g., at their preliminary hearings.

Wednesday, May 01, 2019

People v. Bolding (Cal. Ct. App. - May 1, 2019)

Today's opinion makes me wonder if the defendants charged in the college admissions scandal might eventually have a state law problem as well.

The existing defendants have all been charged with federal crimes, in federal court.  But -- at least currently -- double jeopardy doesn't bar California (or other states) from charging them with state crimes as well.

Many of the existing defendants have recently been charged with additional counts of money laundering -- an offense that carries substantially additional jail time.  And "money laundering" includes a ton of stuff that you wouldn't ordinarily think at all counted as money laundering, so it's likely that the defendants are in fact guilty of those offenses.

Today's case isn't one of the college admissions cases.  But the Court of Appeal today makes state law money laundering cases even easier to prosecute than similar federal law cases, holding that Ninth Circuit precedent that requires "tracing" doesn't apply in California (and thereby disagreeing with a prior Court of Appeal opinion to the contrary).

More bad news if you paid a lot of money to get your kid admitted to a college by pretending that s/he was an athlete.

Tuesday, April 30, 2019

People v. Morrison (Cal. Ct. App. - April 30, 2019)

The question is whether Mr. Morrison stays in detention for additional periods.  But common sense dictates that it's not really a question:

"Morrison had been convicted of kidnapping and raping a fourteen-year-old girl, and forcing her to orally copulate him. While in prison for those crimes, Morrison repeatedly engaged in sexual misconduct and threatening sexualized behavior toward female prison medical professionals. He also admitted he had uncontrollable urges and was likely to rape again if released. . . . Morrison had repeatedly exposed himself to and masturbated in front of female medical professionals, and engaged in other threatening sexual behavior . . . . Morrison confided to a psychologist that, if released, he would rape again."

Yeah.  You're going to be continuously detained as an SVP given those facts.

The only surprising thing is that at least one expert came to the conclusion that Mr. Morrison was not an SVP.  But for the Court of Appeal, that doesn't matter.  It'd be "absurd" to let him out at this stage.

Monday, April 29, 2019

People v. Sanchez (Cal. Supreme Ct. - April 29, 2019)

Two juries are hopelessly deadlocked in deciding whether the defendant is in fact guilty of the crime.  A third jury convicts, and sentences the defendant to death.

The California Supreme Court unanimously affirms.

Friday, April 26, 2019

Tanimura & Antle Fresh Foods v. Salinas Union High School Dist. (Cal. Ct. App. - April 26, 2019)

I'm very sympathetic to the plaintiff in this case.  It's developing a 100-unit housing complex in the Salinas Valley that's designed to house seasonal agricultural workers during the seven-month growing season.  The thing's basically a dorm; two-bedroom units that house between two and four workers each.  Everyone agrees that the only people in the units are going to be the workers themselves; any kids of these workers basically get left at the worker's regular home with the other parent, or (if both parents work during the season) left with friends or relatives.  So basically:  No kids.  None.

But the Salinas Union High School District  nonetheless imposes a fee of $3 a square foot on new residential developments.  Of which this is definitely one.  The theory being -- and, in most cases, this makes total sense -- that new residential development brings new kids, and those kids gotta go to school, so there's "rough proportionality" between the fee and the development.  Which is what the Takings Clause (as well as California law) requires.

But the developer says:  "It's not right to make me pay that $294,000 fee, because my particular development won't have any kids."  So no impact on schools.  And there's legions of evidence that, with respect to this issue, the developer's totally right.  So you're basically making it pay a fee for reasons that fairly clearly don't apply.

And that seems unfair.

The Court of Appeal nonetheless ultimately upholds the fee.  Holding that, basically, there's still  rough proportionality because it's indisputably a residential development, and that it be too hard (and there's no requirement to) look at the particular details of each and every development to see what type of an impact each one would have.  And I get it.  There's senior housing.  There are houses with more bedrooms and fewer bedrooms.  It'd be a pain to have to say "Well, we think that X number of kids are in each one," so maybe just having a basic flat rate is fine.  Even if, in particular cases, it's pretty clear that such a rate vastly overstates the particular impact of this development.  It's evenly applied, and it balances out at the end; e.g., it may be too low for, say, apartments with 4 bedrooms, which are likely to have a lot of kids, but it's nonetheless roughly accurate for everyone.  Roughly.

But still.  I feel bad for a developer who has to pay a big fee when we know for a fact that there's absolutely zero impact of the development on the services relevant to that fee.  So part of me might even be willing to create an exception for such very, very limited set of facts.  Maybe.

But ultimately I read one line -- about thirty pages into the opinion -- that made me think, well, okay, it's not perfect, but in the end, I'm okay with the fee in this case.

The reality is that, almost certainly, there will never be actual kids in the dorms.  The Court of Appeal talks about planning restricts and deeds and regulations and the like, but in the end, I'm okay with the assumption that no kids are actually there.

But, nonetheless, this line made sense to me:  "[I]t is also possible that children accompany a parent or parents for the seven-month season, and whether placed with local friends, relatives, or elsewhere, those children enroll in school."

Yeah.  That seems possible.  I'm sure lots of the kids are left at the worker's regular home.  And, yeah, for the others, I'll assume they're not allowed in the actual dorm.  But it's seven months.  Particularly if both parents are working far from home, it might well be that the parents take the kids with them and place them locally.  Not in the dorms.  But nonetheless locally in Salinas Valley.  Which in turn would have an impact on schools.  Making imposition of the fee legitimate.

So I was worried about the stark inequity of a $300,000 fee at the beginning.  But in the end, I'm okay with it.

It's not perfect.  But it's okay.  No manifest injustice.

Thursday, April 25, 2019

People v. Martinez (Cal. Ct. App. - April 24, 2019)

Here's an example of a "He said, she said" rape case in which guilt seems fairly easily established beyond a reasonable doubt.

People v. Mazumder (Cal. Ct. App. - April 24, 2019)

Justice Goethals is right in this one.  For reasons even beyond the ones he expresses.

Admittedly, Justice Moore's majority opinion makes a ton of sense.  The petitioner pled guilty.  So how can he possibly later file a petition claiming that he was factually innocent of the offense?!  The Court of Appeal holds that he can't.

That pretty much naturally follows, right?

But it's wrong.

The Court of Appeal bases its holding principally on the words of the statute.  It says: "There are three classes of persons who may petition the court for a finding of factual innocence. (§ 851.8, subds. (a)(c)(d) & (e).) 'Those classes are: (1) persons who have been arrested but no accusatory pleading has yet been filed [subd. (a)]; (2) persons who have been arrested and an accusatory pleading has been filed but no conviction has occurred [subds. (c) & (d)]; and (3) persons who are ‘acquitted of a charge and it appears to the judge presiding at trial . . . that the defendant was factually innocent’ [subd. (e)].'"

You see where the majority is coming from here.  The first group doesn't apply to guilty pleas since an accusatory pleading was filed.  The third doesn't apply because the guy wasn't acquitted; he pleaded guilty. And the second only applies when "no conviction has occurred," and with a guilty plead, a conviction has occurred.

So there you have it.  You can't petition.  As a matter of law.

But that's actually not right.  At least in situations like this one.

Because, yes, the guy here pleaded guilty.  But he then moved under Penal Code 1203.4 to vacate his conviction.  Successfully.  So there's no more conviction.

Now, the Court of Appeal understandably says:  "Well, maybe there's a dismissal, but there was still that initial conviction.  He just completed probation successfully, and the Legislature decided to grant him (essentially) clemency under Section 1203.4.  You can still use that conviction for a variety of things."

True.  But we're talking about the words of the statute here.  And the words of Section 1203.4 are crystal clear:  When you successfully file such a petition, you are thereby "permitted by the court to withdraw his or her plead of guilty . . . and enter a plea of not guilty . . . and [have the court] dismiss the accusations or information against the defendant."  So you accordingly don't have a plea of guilty any more.  That's expressly what the statute says.

Which means that you're now in the second group of people who are permitted to file a petition for a finding of factual innocence.  Because, at this point, "no conviction has occurred."

One might respond -- not unreasonably -- that a conviction nonetheless had "occurred" in the past, ostensibly making a Section 851.8 factual innocence petition unavailable.  But such an argument is foreclosed by precedent.  The Court of Appeal held in Laiwala (cited in the majority opinion here) that someone who was convicted at trial but whose conviction was reversed on appeal was permitted to file a factual innocence petition.  And, yes, that's a slightly different case that the on at issue here.  But that holding nonetheless precludes an interpretation of Section 851.8 as barring anyone who had ever been found guilty from filing an innocence petition.  Because such an interpretation would have barred the defendant in that case as well.

What matters is instead whether they currently have a conviction.  And, on that point, the defendant in Laiwala and the defendant here are similarly situated.  That guy had a conviction but on appeal it was vacated.  This guy had a conviction but under Section 1203.4 he was permitted to withdraw his guilty plea and enter a not guilty plea and have the thing dismissed.  Same deal.

Don't get me wrong.  I'm entirely confident that most people who have pleaded guilty will in fact not be able to successfully petition for factual innocence.  Particularly given the fact they previously admitted the offense.  Given that admission, it's going to be incredibly rare for a trial court to find that the guy was in fact factually innocent.  Much less to make such a finding by clear and convincing evidence such that there's essentially no doubt about it.

But the point is that they're allowed to try, and there's no categorical bar to such relief.  Contrary to what the Court of Appeal holds in this opinion.

Nor do I think that such a result is absurd.  Indeed, the contrary seems far more problematic.  Take, for example, a guy who pleads guilty because the police viciously beat him every single day -- and, for good measure, let's say there's video proof that someone had a gun to his mother's head on the day the guy pleaded guilty, with the defendant having to falsely "take the rap" for the underlying crime lest his mother be killed.  Five years later, all this comes out, and the guy is allowed to withdraw his guilty plea and the charges are dismissed.

Under the Court of Appeal's ruling, that guy -- that innocent guy -- can't file a petition to be declared factually innocent.  Because he did, after all, plead guilty, so "none of the three categories" in Section 851.8 apply.  That seems obviously wrong to me.  So too here.

Again:  Unlike the "gun to the head" defendant, in your run-of-the-mill Section 1203.4 case, the fact that the guy previously pleaded guilty will almost certainly stop him from prevailing on the merits of his Section 851.8 petition.

But there's no categorical bar.  He's still eligible.  And if it's that rare case in which he originally pleaded guilty, but he's in fact factually innocent, then he's entitled to -- and should -- obtain relief.

Notwithstanding this opinion to the contrary.

Tuesday, April 23, 2019

Doe v. Westmont College (Cal. Ct. App. - April 23, 2019)

There are undoubtedly political upsides and downsides of living in a state like California, in which the relevant political branches are left of center. But at least one of the upsides, to me, is that places like that have opinions like these.

I'm not expressing a judgment on the merits of that opinion; merely its existence. In many (most?) other states, if you're expelled from a private university, there's pretty much nothing you can do, in contrast to the due process challenges you might be able to bring if you're expelled from a public college. But here in California, generally, you can seek judicial review.

Which seems a good thing to me. It's an important -- sometimes life-changing -- event in your life. Important enough to permit independent review.

I'm confident that the "John Doe" in today's opinion very much agrees.

Tuesday, April 16, 2019

People v. Superior Court (J.C. Penney) (Cal. Ct. App. - April 16, 2019)

I was surprised to see a case today captioned "People v. J.C. Penney Corp."  That's something you typically see in a criminal case, and those filed against corporations are rare.  It turns out it's a civil case about false advertising brought by the L.A. City Attorney, against J.C. Penney and a couple of other stores (Kohl's, Macy's and Sears) for asserting alleged "sale" prices that we're accurate -- or at least didn't comply with the California Business & Professions Code.  Makes sense.

I was even more surprised when I saw that the trial court sustained the defendants' demurrer on the ground that the statute was unconstitutionally vague.

I was less surprised when the Court of Appeal reversed.

Defendants raise a variety of fancy constitutional challenges; e.g., free speech, due process, etc.  But it seems to me that the Court of Appeal gets it right.  At least in this particular statute, there's no real vagueness problem with the terms "market price" and the like -- people of reasonable intelligence can understand what that means.  So the statute survives at least a facial challenge, which is what's been brought here.

I suspect that the City Attorney is correct that the defendants advertise fake "sale" prices that are in fact deceptive, and don't really -- or at least don't uniformly -- accurately describe what the goods in fact sold for in the recent past.  The government can, I think, constitutionally prohibit a store from, say, selling an item for $50, marking it up for 10 seconds to $180, and then reducing the price to $60 and saying "On SALE -- 66% off!"  Yeah, at one level, that's "truthful" advertising.  But it's deceptive and in the context of commercial speech, subject to regulation.

So, for now, L.A.'s lawsuit continues.

Monday, April 15, 2019

U.S. v. Loyoza (9th Cir. - April 11, 2019)

The slogan of United Airlines is:  "Fly the friendly skies."  Anyone who's been on a commercial airplane in the past decade knows that the skies are far from as friendly as they once were.  But the Ninth Circuit reminds us that it's not only cramped airplanes, absurd "incidental" fees, and other nastiness associated with the airlines that makes air travel far less glamorous than it once was.  You've also got the fear that you'll be criminally assaulted.

One case last week involved a criminal prosecution for sexual assault on board an airplane.  In that prosecution, "[d]uring an overnight flight from Tokyo, Japan to Los Angeles, California, Juan Pablo Price, a forty-six-year-old man, moved from his assigned seat to an open seat adjacent to that of a sleeping twenty-one-year-old female Japanese student, where he fondled her breast and slipped his hand into her underwear, touching her vagina."  Not something you want to have to deal with, for sure.

The very next day, the Ninth Circuit issued this opinion, which involved a straightforward (non-sexual) assault on a different airplane.  This time on a flight from Minneapolis to Los Angeles.  (Notice, if you will, that both flights were into Los Angeles.)  That case involved merely a punch to the face, but still, not something you want to have to deal with either.

That latest case also has an interesting doctrinal holding.  The majority opinion holds that under the federal venue statute, you have to charge the defendant in the state that the aircraft was flying over at the particular time of the assault, not (as here) merely in the venue in which the plane landed.  The Ninth Circuit noted that, in some cases, this might not be entirely easy to ascertain, stating:  "We acknowledge a creeping absurdity in our holding. Should it really be necessary for the government to pinpoint where precisely in the spacious skies an alleged assault occurred? Imagine an inflight robbery or homicide—or some other nightmare at 20,000 feet—that were to occur over the northeastern United States, home to three circuits, fifteen districts, and a half-dozen major airports, all in close proximity. How feasible would it be for the government to prove venue in such cluttered airspace?"  Not easy, the majority admits.  But not impossible.  So you gotta do it.

So if you're really angry about that guy behind you who keeps kicking your seat, maybe wait until you're over, say, Texas, or some other state in which the jury might perhaps be more sympathetic to your plight.  Then plunk him.

Wednesday, April 10, 2019

People v. Jones (Cal. Ct. App. - April 9, 2019)

This is fine.  But you know that prosecutors are no longer going to write down their thoughts about the various prospective jurors (lest the defense get those notes in discovery), right?

Diaz v. Sohnen Enterprises (Cal. Ct. App. - April 10, 2019)

You work for Employer.  You've got a written contract that says that you'll be paid $50,000 a year and that you will receive two weeks of vacation per year.  The contract is at will, so the employer can fire you whenever it wishes.

One day, Employer calls a staff meeting and explains that Employer is going through a rough patch. Employer orally tells all the employees the following:

(1) Effective immediately, every employee's pay will be reduced by $10,000 a year, and no vacations will be allowed.

(2) Effective immediately, every employee will be required to mow the CEO's lawn once a week for three hours, without additional compensation.

(3) Effective immediately, any dispute involving Employer and any employee will be decided not in court, but in binding arbitration.

You immediately stand up and tell Employer:  "No way.  I have a written contract.  I don't agree to these changes."  Employer responds:  "Tough for you.  We're unilaterally changing the contract.  If you continue to work here, we are going to deem that as consent to these changes."  You say:  "Look, you can fire me if you want to.  But to be clear:  I'm not agreeing to those changes.  If you continue to employ me, I'm going to deem that consent to our existing contract, not your proposed changed one."

You continue to report to work for Employer.  Employer does not fire you.  Four weeks later (you're paid monthly), you get your paycheck, and it's $800 short.  They've reduced your salary like they said they would.

You promptly quit, and immediately file a lawsuit against Employer, seeking $800 in damages for breach of contract.  Employer counterclaims for breach of contract, alleging that you failed to mow the lawn of Employer for four weeks, and it cost Employer $160 to hire a replacement.  Employer also moves to compel arbitration.  You say in response to both the motion and the counterclaim that you never agreed to Employer's proposed contract, so you're owed the $800 and aren't required to pay $160 or arbitrate your dispute.

Who wins?  Was there a contract?  Was there a meeting of the minds?  Does the answer vary as between the salary, the mowing, and the arbitration clause?

The Court of Appeal doesn't answer all of these questions.  But in a split opinion, on facts analogous to the above hypothetical, it does hold that -- as a matter of law -- the employee has in fact agreed to arbitrate under these conditions.  Expressly saying you don't agree isn't good enough.  You've still agreed.

I'm not quite sure why the Employer's unilateral "take it or leave it" (e.g., if you report to work you've agreed) is given priority over the Employee's unilateral "take it or leave it" (e.g., if you continue to employ me, you've agreed").  Particularly since the Employee's statement is consistent with an existing contract to which all parties did agree, so presumably, you've got to get a new meeting of the minds to change it.

Nor do I understand why arbitration would be any different than salary, or mowing the lawn, or anything else.  So if there's a distinction here, it'd be interesting to see where it comes from.

Regardless, that's the law (at least now) in California.  Even if you say you disagree, it's still a contract, and you're bound.

Monday, April 08, 2019

Demarest v. HSBC Bank (9th Cir. - April 8, 2019)

Diversity jurisdiction was one of the easier concepts in law school.  At least at its most basic level.  For example, it's not hard to remember that you've got to have complete diversity of citizenship.  A concept like that is likely to be on the test, and is (fairly) easily remembered.

But the details are often incredibly difficult.  How one treats corporations wasn't that hard -- place of incorporation and principal place of business -- though figuring out the latter wasn't invariably easy.  But then you've got associations, and insurers, and executors, and things like that.  All these artificial entities for which there are separate rules.

My guess is that your eyes pretty much glazed over when you got down to that level.  With the totally understandable approach of "Well, I get the basics fairly well, so let's move on."

Which is fine for law school.  But then, once you become a lawyer, when you have a case in which you have to actually confront (and brief) the issue, well, sorry.  You're stuck.

Today's (sole) Ninth Circuit opinion delves into the complicated issue of how you treat "trusts" in determining diversity jurisdiction; in particular, trusts created my mortgage securitization.  Do you just look at the citizenship of the trustee?  Or do you look at the citizenship of the beneficiaries (or both)?  After all, it's the latter who really care about the lawsuit.  Even though the former is the nominal defendant and legally represents the latter.  Who counts?

It's not an easy question.  Particularly since (1) the Supreme Court has been slowly changing all these diversity rules, at least at the margins, and (2) the number and complexity of artificial legal entities keeps increasing over time (which in turn partially explains (1)).  So does the rule remain the "usual" one:  that it's just the trustee that counts?  Or is this more like REITs and other trusts, where, under evolving law, it's the beneficiaries (at least in part) that matter?

Ultimately, the Ninth Circuit decides to just dance with the person who brung 'em.  It sticks with the traditional rule.  Only the trustee counts.

If the Supreme Court wants to change the rule, it's up to them.

Thursday, April 04, 2019

Shoen v. Zacarias (Cal. Ct. App. - April 4, 2019)

I don't teach Property.  I don't want to teach Property.

But if I did teach Property, I'd have my first-year students read this opinion.

It involves a topic that seems much more practically important in the modern world than, say, who owns a wild fox.  A landowner grants a neighbor a (free) license to use part of his property -- here, a cliffside area for meditation -- and the neighbor spends some money improving the area.  Does that give the neighbor a perpetual license to use the thing, or can the landowner revoke the license at his leisure?

The trial court said that the license was perpetual.  The Court of Appeal reverses.

Justice Hoffstadt goes a very good job of exploring the relevant precedent and making sense of it.  You get a "perpetual" license (or at least a long one) if you've made "substantial" improvements to the property at issue or spent a "substantial" amount of money on the thing.  You can readily understand the equity behind that rule.

So the issue becomes:  What counts as "substantial"?

The Court of Appeal goes down the specific facts of this case, and does a great job.  It's a concrete example of a modern property dispute.  Definitely worth reading during one's first year of law school.

Plus, it highlights a practical -- somewhat counterintutive -- part of civil procedure.

Namely, that the parties litigate this case for years, and undoubtedly at the cost of tens of thousands of dollars, even though the property at issue almost certainly isn't worth even nearly that much.  You get into litigation and emotions boil over and everybody loses.  Even the winner.  It makes absolutely no sense that this thing was litigated for as long as it was.  It should have resolved.  It didn't.

So, yes, it made some good precedent.  And one side comes out the "winner" -- at least legally -- in the end.

But it's economically irrational to do stuff like this.  For everyone except the lawyers.

Wednesday, April 03, 2019

Workman v. Colichman (Cal. Ct. App. - April 3, 2019)

The sole published opinion by the Court of Appeal today reinforces a trend that's been building for the last several years, and sanctions the defendants and their counsel for filing a frivolous appeal of the denial of their anti-SLAPP motion.

The Court of Appeal is getting more serious about this stuff.  It's increasingly trying to deter the dilatory filing of anti-SLAPP appeals.

Imposing sanctions is but the most recent step.

Be forewarned.  You're undoubtedly going to see more of this in the years to come.

Even if the Legislature won't act to amend the anti-SLAPP statute, the Court of Appeal is starting to take matters into its own hands.

Tuesday, April 02, 2019

National Asian American Coalition v. Newsom (Cal. Ct. App. - April 2, 2019)

The fallout from the subprime mortgage crisis is far from over.  Today's opinion is just a portion of what's left.

This particular case involves what to do with the $410 million settlement that California received when the federal government and 49 states (with Oklahoma as the inexplicable holdout) sued the nation's five largest mortgage servicers for various violations of federal law.  Under the settlement agreement, those funds were to be used "for purposes intended to avoid preventable foreclosures, to ameliorate the effects of the foreclosure crisis, to enhance law enforcement efforts to prevent and prosecute financial fraud, or unfair or deceptive acts or practices and to compensate the States for costs resulting from the alleged unlawful conduct of [the Bank defendants]."  But over a series of years, California basically used ("allocated") that money to offset various general fund expenditures.

Various consumer groups brought suit in 2014, and were originally successful; with the trial court holding that "$331,044,084 was unlawfully appropriated from the National Mortgage Special Deposit Fund for purposes inconsistent with these instructions" but which hesitated to order that the money be put back.  The case then went up to the Court of Appeal, which largely agreed with the trial court on the merits but which granted a more expansive remedy, ordering "the immediate retransfer from the General Fund to the National Mortgage Special Deposit Fund the sum of $331,044,084."

At which point both the Legislature and the California Supreme Court get involved.

The Legislature doesn't like losing, so it passes a new law, which is expressly designed to abrogate the Court of Appeal's holding.  And the California Supreme Court thinks that the new law is a fairly material new matter, so it orders the Court of Appeal to take a new look at the issue under the new statute.

Which the Court of Appeal promptly does.  Leading to today's opinion.

Which completely reaffirms its prior holding and instructions.

The Legislature has a lot of power.  Power that private litigants typically don't possess.

But that doesn't mean that the Legislature uniformly gets what it wants.

Because there's separation of powers in our democracy.  Which allow you to lead the courts to water, but you can't always make 'em drink.

Friday, March 29, 2019

Molinaro v. Molinaro (Cal. Ct. App. - March 29, 2019)

Sometimes all you're doing in a lawsuit is making things worse.  Particularly in family law court.  Especially when you're representing yourself.

Michael Molinaro is married to his spouse for nearly 20 years, but she decides to leave, and files for divorce.  As she's getting some of her stuff out of the former marital residence, she alleges that "after a verbal altercation with Bertha and some of the family members, Michael moved his car to block the moving truck from exiting the home’s driveway. Bertha called the police, who eventually detained Michael."  She also says that "Michael had physically restricted Bertha from leaving the home on two other occasions -- once by blocking the front door and another time by blocking her car in the home’s carport. Before filing for divorce, Bertha had installed locks on her bedroom door “because [Michael] was acting erratic and [she] was afraid of him.” Michael threatened to “throw a chair though the bedroom window” if she did not remove the locks."

Not good stuff.  So she moves for a restraining order.  For that and some other conduct.

At the hearing, the wife "asked that Michael “please stop posting everything about the case on Facebook,” and “stop giving the children all of my pleadings.” Michael responded that he had only given the children copies of “the domestic violence restraining order, not of the divorce petition.” When the court asked, “what makes it okay to give the 13-year-old and the 17-year-old copies of the court papers,” Michael answered, “My best judgment, Your Honor.”"

Mr. Molinaro might not be reading the judge extraordinarily well at this point.  But okay.

Then things start to go downhill.

"The court explained to Michael that it intended to “issue an order against you today that precludes you from discussing the matter with the 13-year-old and the 17-year-old,” warning him that courts may “consider parents insinuating children into the court process” in making custody determinations. Michael objected to the order, arguing Bertha had “emptied [their] home equity of $250,000 [sic]” and “relocated [his] children to a mystery house without informing [him].” The court acknowledged the objection, but asked Michael to confirm he understood the terms of the order. Michael responded, “Okay. I understand the what. I question the sanity.”"

Let me interject with a tip.  It's generally not a great idea to openly "question the sanity" of a judge or one of his rulings.  You can think it.  You can ponder it.  But probably best not to express it.

The parties subsequently appear at a different hearing in front of a different judge.  So everyone's had an opportunity to cool down.

Or, apparently, an opportunity to heat up even further.

Mr. Molinario doesn't prevail at this hearing either, and the new judge enters various orders.  At which point the new judge "asked Michael if he understood the order. Michael responded, “No, I don’t. I think you’re insane. I don’t understand a word you are saying. It lacks reason, Your Honor. There was no evidentiary foundation for your order.""

Okay.  Another tip.  When multiple judges appear to you to be "insane," I redouble my counsel to keep your thoughts to yourself.  And maybe -- just maybe -- to reflect on whether your judgment in this matter may be the problem, rather than the sanity of the underlying judicial officers.

But Mr. Molinaro's not finished.  Not by a long shot.

"Bertha’s counsel asked to arrange “reasonable visitation with the kids.” She suggested the parties go down to the mediation office to “work out the parenting plan for the kids.” The court suggested mediation might not be productive at the moment, in view of Michael’s “behavior.” Michael interrupted the court, demanding to know “[w]hat behavior.” The bailiff asked Michael not to “scream,” and the court noted Michael had been “[y]elling in court.”

The court ordered Michael would have monitored visits with the children in “a neutral setting.” Michael asked that the visits take place at the children’s residence. The court denied the request, admonishing Michael that he was to stay 100 yards away from the residence. The court also ordered that he was to work with Bertha’s counsel to find a professional monitor. Michael responded, “No, I’m not.”"

Telling a judge that you're not going to follow her express order is rarely a good idea.  It does not generally incline that judicial officer to rule your way.  Particularly in a family law dispute.  The next line of the opinion reads:

"The court granted legal and physical custody to Bertha."

Let this be it, the proceedings continue.  With this:

"At Bertha’s request, the court also ordered Michael to attend anger management classes. Michael responded, “On what basis? There’s been no abuse, Your Honor.”"

Let's stipulate for a moment that there's been no abuse.  And, yes, I'm looking at a cold appellate record, and wasn't there.  But even with those caveats, even I can see way maybe a court might have a reason to order anger management classes.  Because the guy's having a problem even keeping it together in court.  If you can't be calm and collected even in that setting, I can see why there might potentially be a problem with anger management in other settings as well.

And I come to that conclusion even before reading the footnote immediately after that last sentence, which reads:

"The objection prompted another exchange in which the court and bailiff cautioned Michael against screaming or “raising [his] voice and yelling.” When the bailiff, for a third time, admonished Michael not to scream, Michael responded by disparaging the “family law bar.”"

Which reminds me that there's another job that I personally do not wish to have:  being a bailiff in a family law courtroom.  Rough.

So, fortunately, the hearing is nearly at an end.  Or at least the part reported in today's opinion.  But not before this:

"The court explained it was ordering anger management, not a 52-week batterer’s intervention program. Michael continued to respond indignantly: He told the judge, “Why don’t you put me behind bars[?]”; asked, “How fast can I commit contempt of court by going to none of them, Your Honor?”; and told the court, “I have no respect for the court, Your Honor.”"

Again, I'm not sure that stuff like this really advances the ball.  Indeed, when you say stuff like that, I'm pretty sure that your opposing counsel is just sitting there smiling (at least inwardly) as you dig your own grave.

I know it's hard.  Extraordinarily hard.  But try to remain calm.  Even as things are very much not going your way.

Mr. Molinaro represented himself in this proceeding, as well as on appeal, and he used a lot of fancy legal language in places.  (At least when he wasn't calling the judge insane.)  So I wondered if he was perhaps an attorney.  Which would make his outbursts even worse, or at least even more inexplicable, IMHO.

The litigant's name is Michael M. Molinaro, and the case is out of Los Angeles.  There's an attorney named Michael Martin Molinaro in Los Angeles.  I'm not saying they're necessarily the same person, since I don't know.

But it'd surely be unfortunate if they were.

One final mention.  Sometimes the Court of Appeal thanks amici for participating in a case and submitting a helpful brief that articulates various issues.  Justice Egerton's opinion does indeed mention the one amicus brief submitted in this case.  But isn't exactly overly congratulatory.  One might even say that Justice Egerton throws some implicit shade, saying in the final footnote:

"We also have reviewed the National Coalition for Men’s amicus brief and find nothing in it warranting discussion."


Thursday, March 28, 2019

Zakaryan v. Men's Wearhouse (Cal. Ct. App. - March 28, 2019)

I've seen their commercials for years.  "You're going to like the way you look.  I guarantee it."

I've always known the store as the Men's Warehouse.  Clothing for men.  Suits, mostly.  Hence the Men's, and in (ostensibly) a "Warehouse" setting (implying, as some of its ads do, that the stores sell suits at a discount).

But Justice Hoffstadt's opinion earlier today briefly refers to the store as having a "homophonic name."  Really?!  How's it homophonic?  (Which means it sounds the same as a different word.)

Only then did I realize that, all these years, I've never recognized the actual name of the place.  It's actually called the Men's Wearhouse.  For stuff you wear.

Oh, I get it now.

Wednesday, March 27, 2019

Long v. Forty Niners Football Co. (Cal. Ct. App. - March 26, 2019)

Minor point first.

The opening paragraph of this opinion reads:  "Defendant Forty Niners Football Company, LLC demurred on statute of limitations grounds, and the trial court sustained Long’s demurrer without leave to amend."

I think that Justice Brown means that the trial court sustained the Forty Niners' demurrer, not Long's.

Substantive point next.

The final couple of paragraphs holds that the statute of limitations isn't tolled during the period a plaintiff files a diversity case in federal court, even though there's a federal statute that expressly tolls the limitations period for supplemental claims brought in federal court.  The Court of Appeal does not cite any cases for that proposition, and thinks that the express language of the statute (28 U.S.C. sect. 1367(d)) makes the point clearly enough.

Perhaps.  And I know that there are, in fact, some other courts that appear to have held the same way, albeit in dicta and without much analysis.

But it's a funny rule (if it indeed exists).  Imagine a case where a plaintiff brings both federal and state claims and thinks that both federal question and diversity jurisdiction exists.  If he's right, then (under the Court of Appeal's holding) there's no tolling, since original diversity jurisdiction stops the tolling.  Yet if he's wrong -- if, for example, he was mistaken, or even brazenly lying about the residence of the parties -- then all of the sudden he gets the benefit of tolling, since the state claims are now based on supplemental jurisdiction.

Seems irrational  Why have a longer tolling period for the wrongdoer, while potentially barring the honest guy on limitations grounds?

I'd think that even if the statute itself didn't apply, you might have some common law principle like equitable tolling to fill in the gaps.  'Cause it doesn't make much sense to me to grant a tolling period only for supplemental claims.

So I wonder if those final two paragraphs might benefit from a bit more analysis.

And maybe someone might want to eventually write a law review article about the thing.

(Not me, though.)

Tuesday, March 26, 2019

People v. Eddy (Cal. Ct. App. - March 26, 2019)

I agree that the defendant in a criminal case is entitled to have his lawyer argue that he's innocent if that's what the defendant wants.  Even if that's perhaps not the "best" strategy at trial.  It's the life and liberty of the defendant that's at stake.  (Particularly, as here, in a prosecution for murder.)  If the defendant wants to argue he's not guilty, he's got that right.  Even if the defense counsel thinks -- perhaps correctly -- that the most effective way to present a defense would be to concede the events at issue and argue for voluntary manslaughter.

Now, here, the defendant was waffling a bit.  This is not your prototypical case where the defendant consistently insists on X but the attorney goes and does Y.  Still, the Court of Appeal is correct that the defendant had a desire and his counsel didn't follow it.  That's generally sufficient -- on a critical issue like factual innocence, anyway -- to warrant a reversal.

Mind you, given the evidence, I'm fairly certain that the defendant will again be convicted at the retrial.  The evidence against him was somewhat overwhelming.

But at least he'll get the joy of losing with his own strategy, as opposed to a strategy with which he disagreed.

Small solace, I know.  But important.

(Parenthetically, the investigation of the crime here was far from perfect.  After the stabbing, the police looked for the murder weapon in the apartment, but couldn't find it.  Even though it was just sitting under the kitchen table.  And they found fingerprints on the knife, but apparently didn't even bother to test them to see if they matched the defendant.  Not the kind of police work you typically see in a murder case.)

Monday, March 25, 2019

Steinle v. City and County of San Francisco (9th Cir. - March 25, 2019)

Today's Ninth Circuit opinion got me thinking a little bit about when appellate courts elect to call events "tragic" (or not).

This is surely a tragic case.  A high profile one, as well.  Kathryn Steinle gets randomly shot and killed on a San Francisco pier when a gun held by an unauthorized immigrant discharges.  (Whether or not he deliberately killed her is unclear.)  Random deaths like that certainly qualify as tragic.  As do many deaths.  Rarely is the cessation of life of an innocent person cause for celebration.

So it's perhaps no surprise that the first sentence of Judge Bennett's opinion labels the events as "undeniably tragic."

But I started to wonder what sort of opinions decide to label the events as "tragic" as opposed to simply setting forth the facts?

Does the fact that it's a high-profile case matter?  This one definitely got a lot of press, and became a large part of an ongoing debate about the benefits and liabilities of unauthorized immigration.  Is that why this particular case gets labelled "tragic" -- because it particularly touched the heart of those on one side of the debate or another?  Or do we disproportionately label events "tragic" when we think a large number of people (e.g., nonlawyers) might be reading the opinion?

There are, after all, a ton of deaths recounted in Ninth Circuit (and other appellate) opinions.  Most of which could probably be quite accurately described as tragic.  Why do some get the appellation and others do not?

Does the result matter as well?  Here, the Ninth Circuit decides that San Francisco isn't liable for the death (which seems to me exactly right), and hence affirms the district court's dismissal of the plaintiff's lawsuit.  Are judges more likely to describe an event as "tragic" if they then go on to deny relief to the party with whom they expressly proclaim sympathy?

Those are hypotheses, anyway.  I'm not sure how I'd definitively verify or disprove them.  I did check to see how often the Ninth Circuit, in particular, describes events as "tragic."  Not surprisingly (to me, anyway), it happens much more in published opinions than in unpublished opinions.  Since January 1, 2000, that word is in 167 published opinions, as opposed to only 64 unreported ones.  That also means that we're using that term around once a month.  In 2019, the Ninth Circuit has used that word to describe school shootings, a car accident, a prison suicide, a landslide, and a wrongful conviction and imprisonment.  I'd have thought the label was most likely to be applied to random murders.  But it seems the term is used much more broadly.  (Accurately so.)

I'm sure there are other terms that are similarly employed.  Dreadful, appalling, awful, etc.  But my money's on "tragic" being the most common.

Because lots of cases on appeal do indeed involve tragic events.

And a fraction of them are expressly described as such.

Wednesday, March 20, 2019

In Re Marriage of C.T. and R.B. (Cal. Ct. App. - March 19, 2019)

Speaking of nightmares . . . .

I'm confident the Court of Appeal sets forth the facts that most strongly support its decision to reverse the judgment below, which awarded primary physical custody to Father.  But based solely on what I read in the opinion, I totally get why the Court of Appeal is concerned about that.  I too am worried that it makes no sense at all to send the kid to Arkansas with Father.

Admittedly, Mother's extraordinary reluctance to do what the court ordered her to do complicated the situation, and almost certainly upset the trial court.  But you can understand her emotional reaction to the situation (at least in part).  She just can't fathom why her son would be sent to Father under these circumstances.  So she reacts as she did.

Even though it just makes things worse.

Herriott v. Herriott (Cal. Ct. App. - March 20, 2019)

Think it'd be fun to be a justice on the Court of Appeal?  Perhaps.  Though you also have to deal with cases like these.

It's an elderly couple who's divorced.  Who nonetheless live in the same building -- 123 24th Street in Hermosa Beach -- with Wife living on the second floor and Husband living on the third floor.  Which, obviously, is a recipe for disaster.

They get into nightmares of fights.  They have mutual restraining orders against each other.  Their own daughter testifies that her parents have an extremely “volatile” relationship, and that “[i]t’s been hell being a child for them.”  Today's opinion is replete with lots of excruciating -- and depressing -- details.

Oh, and they both represent themselves on appeal.  So no lawyers to help sort things out.  Leading, among other things, to this footnote:

"As an initial matter, we note that the appellate briefs filed by both parties were deficient and failed to reasonably assist this court in our understanding of the facts or analysis of the legal issues in this case. Alicja’s brief makes repeated references to evidence without any citation to the record as required by California Rules of Court, rule 8.204(a)(1). Indeed, in many instances, our review of the record confirms no evidence supporting these statements. . . . Both parties also misrepresent the record in several places. Further, we observe that Respondent has attached documents to her brief that are not included in the record. . . . [O]ne of the documents Respondent attached to her brief is a confidential child custody evaluation report, [so] we have considered sanctioning Respondent. (See subsection D of Discussion herein, post.)"

So, yeah.  That's some of the work with which the Court of Appeal is required to deal.

I suspect that being a justice is a great job.  Most of the time.

Monday, March 18, 2019

Boyer v. Ventura County (Cal. Ct. App. - March 18, 2019)

The result of today's opinion by Justice Yegan seems right to me.  Though, respectfully, I think he dramatically overstates the case.

For over a century, the rule was that you could run to be a County Sheriff with the same qualifications you needed to run for virtually any other political office.  Which is to say:  None.  You don't have to be smart to be, say, the Mayor.  So you also didn't have to be smart -- or qualified, or competent, or potty trained -- to be the Sheriff.  The voters got to decide.

But in 1988, after 150 years of things working out just fine relying on the voters, the Legislature decided to limit who could become a County Sheriff, and imposed some minimal qualifications for the office.

The Court of Appeal upholds those limitations.  And Justice Yegan waxes poetic about their utility, saying (among other things):

"We are quick to observe a common sense reason why appellant cannot prevail. Experience is the best teacher. This is true whether you are a plumber, a teacher, a doctor, or a lawyer. It also applies to being the elected sheriff of a county where there are several hundred deputy sheriffs and several hundred non-sworn personnel to supervise. It does not matter how intelligent you are or if you are acting in good faith. There is a good reason why the Legislature has imposed an experience requirement. To get a “feel” for law enforcement, i.e., coming to a true understanding of it, you must learn about it in the field by doing it. The people of California have been well served by personnel who have worked their way up the chain of command to leadership."

I'm not going to quibble with the underlying concept.  Experience is often indeed helpful.  At least all other things being equal.  Mind you, if the voters feel like electing someone with less experience -- an "outsider," perhaps -- I'm fine with that too.  Sometimes experience is good, and sometimes it's good to instead get someone who perhaps brings a fresh perspective that's not been formed (and/or jaded) by prior work in the area.

Which is why, for example, we don't have any service qualifications to become, say, President of the United States.  If you've got a pulse, are 35 years old (14 of which were spent here) , and are a natural born citizen, you can control the world.  If you can convince the voters that you should.

So, to me, I'm not a thousand percent positive that there are "good reasons" by the Legislature has imposed an experience requirement.  The world might (or might not) be a better place without them, relying instead (as we did for 150 years) on the intelligence of the voters to decide what role, if any, any particular degree of experience should be required.

That said, I am also fairly confident that it was rational for the Legislature to impose the experiential requirements it imposed.  Since that's all that seems to be required under the California Constitution, the result of today's opinion -- that the statute is constitutional -- works for me.  Even though I'm not entirely simpatico with Justice Yegan's certainty that experience is necessarily essential.

At the same time, I'm also confident that I affirmatively disagree with the Court of Appeal's apparent belief that the particular requirements here manifestly make sense.  Or, to put it differently, that there is no way to get a "true understanding" of the role of a county sheriff any way other than by "doing it," or that the particular experiential requirements imposed by the Legislature ensure that candidates have "worked their way up the chain of command to leadership."

Because, in truth, the Legislature's experiential requirements are incredibly minimal.  Spend a year as a marshal for a magistrate in a federal civil courtroom, having never pulled your gun or gotten out of your chair? You're qualified.  Spend 12 months as an investigator for a district attorney?  Good to go. Work a year with Fish & Game making sure people bought their fishing licenses?  Welcome to being County Sheriff.  All of these people are qualified.  Seems to me to overstate the case by saying that all of these people necessarily "know the field" than, say, a professor of criminal justice who's worked in the area for 30 years, or a civilian member of the Police Review Board (or maybe even a criminal defense attorney) who's had a quarter century of exposure to a wide variety of police practice.

And that's probably even true for candidates with actual police experience.  For example, under the statute, if you spend 12 months as the sole police officer in, say, Amador City (population: 125), you can be County Sheriff.  Maybe County Sheriff of, say, Alpine County (population: 1057).  Your year of work as the sole officer in a sleepy town of 125 hardly constitutes "work[ing] [your] way up the chain of command to leadership."  Nor does a candidate for the Alpine County Sheriff position, I imagine, constitute an office "where there are several hundred deputy sheriffs and several hundred non-sworn personnel to supervise."

Seems to me that a voter might well reasonably say, "Yeah, I'm not so sure that Ice-T has much experience in the area, but, hey, he plays a cop on television, and I don't think that Barney Fife guy who's running against him is all that hot, so I'm going with the big guy."  In short; experience can be way, way overrated.

Including by the Court of Appeal.

But, to reiterate, it's rational to require some degree of experience.  Could reasonable minds differ?  Sure.  And undeniably do.  But since the statute has a rational basis, and the Constitution doesn't seem to affirmatively exclude Legislative requirements for the position (e.g., by imposing its own), that's dispositive.

No need to wax poetic about the manifest wisdom of the underlying rule.  Since, at least to me, the merits of such a requirement seem a much closer call.

Wednesday, March 13, 2019

Fowler v. Guerin (9th Cir. - March 13, 2019)

Judge Bennett makes his presence on the Ninth Circuit felt in today's dissent from denial of rehearing en banc.

You'd think that the underlying opinion was hardly something that would garner much controversy.  It's an opinion authored by Judge Gould that's joined by Judge Ikuta.  Two individuals who are far from radical left-wingers.  It concerns, according to Judge Gould, a class action brought by a couple of teachers who ask for a "return [of] interest that was allegedly skimmed from their state-managed retirement accounts."  Hardly the most unsympathetic of claims.  And the panel opinion is without dissent or -- at least when you read the opinion -- much controversy.

Yet Judge Bennett, who joined the Ninth Circuit in July, pens a 17-page, single-spaced dissent that argues that the panel's opinion radically conflicts with the Eleventh Amendment.  So thinks that the opinion should be taken en banc.

The only other judge who joins Judge Bennett's dissent is Judge Ryan Nelson.  Who's another Trump appointee also new to the Ninth Circuit, having joined the court even later than Judge Bennett (Judge Nelson took his seat in October).

It's still early.  It's only one opinion.  But the early returns nonetheless suggest that we may hear a lot from the first two Trump appointees on the Ninth Circuit for some time.

Monday, March 11, 2019

In Re M.S. (Cal. Ct. App. - March 11, 2019)

The quotes are from today's opinion by Justice Gilbert.  The text not in quotes is mine:

"Is M.S. eligible to be considered for referral to a mental health diversion program pursuant to the newly enacted sections 1001.35 and 1001.36?"

Well, I honestly don't know what those statutes say.  But just to get things started, I'd want to know how serious the crime was.  More serious crimes probably aren't likely to get diversion.

"This appeal concerns the tragic death of Baby Boy A. . . ."

Oh no.  Not one of these.  So depressing.

". . . . following his home birth to then 15-year-old M.S."

Oh my goodness.  Gave birth at home and then neglected the child, resulting in its death?!  That's so incredibly sad.

"Frightened that her parents would learn that she had been pregnant and given birth, M.S. inflicted fatal cuts on A.’s throat, severing his carotid artery and trachea. M.S. thereafter placed his body in a plastic bag and concealed the bag in the bathroom vanity."

OMG.  That's horrible.  Simply horrible.

On so many different levels.

"During police questionings, M.S. initially asserted that the infant was born stillborn but then stated that she accidentally wounded him when she cut the umbilical cord. When confronted with the medical examiner’s findings, however, M.S. finally admitted that she used a kitchen knife to cut the infant’s throat."

At least she comes clean at the end.

But still.  What an incredibly depressing way to begin our week.

Or to learn about a 15-year old girl and her infant son.

Friday, March 08, 2019

Anderson v. State Farm (9th Cir. - March 8, 2019)

Here's a totally straightforward opinion by Judge McKeown.  Short -- relatively, at least -- to the point, and completely coherent.

And yet I think she's wrong.

The question is a simple one:  When you serve a corporation, when does the 30-day removal clock start ticking?

The issue arises because corporations are fictions.  You serve a corporation by serving one of its agents.  So does the 30-day clock start ticking when the agent gets notice, or only when the entity "itself" receives notice?  With the caveat that the entity "itself" is a piece of paper, and can't read.

Judge McKeown decides that it makes sense to have a bright-line rule that says that it's only when the corporation "itself" actually receives the complaint that the clock starts ticking.  And she so holds in a factual context that perhaps lends itself to such a conclusion.  The Washington statute here says that in order to serve a foreign (i.e., out-of-state) insurance company, you're required to serve not the insurer directly, but rather, you've got to serve Washington's Insurance Commissioner.  Who in turn forwards the complaint to the insurer.

Judge McKeown says that in such circumstances, it makes sense to say that the clock starts only when the company itself receives the papers.  Otherwise the 30 days might potentially run out even before the company knew about the complaint (if, say, the Commissioner didn't properly forward it).  And, in any event -- and this is her central point -- we don't want the federal 30-day rule to vary in application depending on the vagaries of particular state rules about service of process; e.g., who "counts" as the agent for the company.

So we're going to have a simple rule.  It starts when the company gets the papers.  Not a designated agent.

Makes sense, right?

Yeah.  That's what I sort of thought at first too.  A nice, simple, bright-line rule.  One that also has the advantage of following the only other circuit (the Fourth) that's decided the issue.

But then I thought about it more.

And decided that I came out the other way.

'Cause the truth is, all the problems that Judge McKeown talks about already exist with the removal statute anyway.  And her "solution" to the problem in the particular insurer context here will only create additional difficulties in deciding when today's "usual" Ninth Circuit rule applies and when it doesn't; e.g., which agents count for today's rule and which don't.

The thing that changed my mind was realizing just how many different forms "agents for service of process" take.  Judge McKeown focuses -- understandably -- on the one at issue here:  when a state forces a company to use a state officer as its agent.  In such settings, yeah, you have the problem of maybe the agent not being competent, or faithful, or timely, or whatever, and it makes facial sense to say that the clock starts ticking only when the "company itself" actually sees the papers.

But let's take a different agent.  For example, both the Fourth and the Ninth Circuits decided as they did with state-mandated agents that were state officers, but let's instead look at California's law.  That statute says that out-of-state insurers have to appoint an agent, but doesn't say who they have to appoint.  Maybe they decide to appoint their own Treasurer.  Maybe they decide to appoint the state Insurance Commissioner.  Maybe they decide to appoint Shaun Martin.

What rule applies then?  If they appoint the state Insurance Commissioner, does today's rule still apply, since the Insurance Commissioner might not forward the thing properly, we don't want state law to dictate the federal 30-day clock, etc. etc.?  Or does the fact the company "chose" that person mean that she's effectively the Company itself?  Ditto for if they choose Shaun Martin.  Does it start when I receive the summons and complaint, or only when the Company itself receives it (and what if I deliberately delay in order to give the Company more time to remove)?

And ditto for when the Company appoints its own Treasurer -- or a secretary to the CEO, or the company janitor, or the CEO himself, or whomever.  Are we supposed to similarly say that these are not the "Company itself" so the clock starts ticking only later?  Yet that sounds absurd, no?  In turn, what about someone who's full-time job is to receive service of process?  Does whether the 30-day clock starts depend on whether they're an employee vs. independent contractor?  On whether they only receive process for one Company, or more than one?  Where's the line here between what agents "really" stand in the shoes of the Company for purposes of the removal clock and which ones don't?!

Judge McKeown has a simple answer to that question at the very end of her opinion, in footnote 5.  She says:  "We're not deciding that.  That's a different case."

Well then it's not a very bright-line rule now, is it?  Sure, we know how this case gets resolved; one that involves out-of-state insurers who have state-designated officers as exclusive agents.  But there are a thousand cases that we now don't know the rules for, right?  Because we're not sure whether today's rule applies to them or whether a different rule -- the one posited in footnote 5 -- applies.

So far from being an easily applied principle, today's decision seems to create much more confusion than it settles.  As well as creates an artificial line the contours of which are unclear.

To be fair to Judge McKeown, she has an answer for that as well.  And essentially says, earlier in the opinion, that things seemed "just fine" under the Fourth Circuit's rule, and there didn't seem to be a ton of confusion in the lower courts after that particular result, so presumably there won't be any here as well.

Okay, sure, maybe.  But there wasn't much confusion before those decisions either.  Since apparently there are only two cases in history that ever presented this precise issue.  So maybe everyone before just made sure to remove cases within the 30 days from when ANY agent got served.  Which, to be honest, makes total sense.  Why not play it safe?

So, yeah, people may still be doing that, even after today's (and the Fourth Circuit's) decision.  But that doesn't justify a rule that's nonetheless seemingly arbitrary -- service on Treasurers (or janitors, or Shaun Martin -- or maybe not) counts, but not on an Insurance Commissioner -- and that necessarily requires us to create lines between certain agents that start the 30-day clock and other agents that do not.

And the more I thought about Rule 4, the more I became convinced that today's Ninth Circuit rule creates far more problems than it solves.

Because there are TONS of agent rules therein.

(1) We already rely on state law.  Way, way.  So I'm not sure that the "What a pain it would be to rely on state law to decide whether the 30-day clock is ticking" argument is all that great.  We rely on state law to decide whether to take someone's default (since Rule 4(e)(1) borrows state law).  We also rely on state law to decide what agents are appointed "by law" under Rule 4(e)(2)(C).  Other stuff too.  So while I thought today's opinion was persuasive on the whole "Congress wanted uniformity not state-law specific stuff re: removal," upon reflection, I've changed my mind.

(2) We're going to have a hell of a time figuring out how far today's opinion goes.  Indeed, the only thing that'll stop a ton of cases from coming up in the future is a lack of creativity on the part of those lawyers who wait until the last minute to remove.  For example, not only do we have the "which corporate agents count as 'real' agents" problem discussed above, but what about Rule 4(f)(2)?  Does service in a foreign country, pursuant to its rules, start the clock ticking?  What if that foreign agent doesn't promptly (or ever?) relay the notice?  Is it really the rule that you can validly take someone's default under Rule 4(f) and yet the removal clock never started ticking under analogous situations?

And today's opinion is even a problem for individuals.  Normally, you'd think:  well, obviously, the removal clock starts ticking when they get handed a copy of the complaint.  But remember:  that's not the only way to serve 'em.  What about Rule 4(e)(2)(B)?  Say I leave a copy of the summons and complaint with the guy's wife, or roommate, or 21-year old child living in the home, and state law says that's valid.  Does the 30-day clock start ticking?!  After all, he never chose them -- just like the company in today's opinion didn't choose the Insurance Commissioner.  They were chosen by law.  And maybe the roommate delays in giving the complaint to the guy.  (Or maybe the defendant lies and says the roommate didn't hand it over until 20 days later.)  Until today's opinion, I'd have thought it obvious that the 30-day clock started when you handed it to the roommate or wife.  But under the Ninth Circuit's reasoning, the same "don't mess with state law, bright line rule, gotta be given to the defendant itself" arguments apply there as well.  Or, alternatively, yet another line we have to draw.

In the end, I'm persuaded of a different bright line rule.  One that's actually a bright line, and easy to apply -- or at least no harder than the one we apply already.  It's this:  If service on your agent is enough to allow your default to be taken, then it's enough to start the 30 day clock.  If serving your agent is "good enough" to count as service on "you" sufficient to take all your worldly possessions away from you, then it's good enough to count as service on "you" sufficient to start your 30-day clock to remove.

And if, as here, you wait until the last day, that's on you.  You've got 30 days to remove from the date of valid service on your agent.  Just like you've got 30 days (in many state courts) to avoid a default from the date of valid service on that same agent.

Same clock.

So did the Ninth Circuit write an understandable opinion?  Definitely.  And I totally get where it's coming from.

But I still think it's wrong.  Even more so than when I first started having my doubts.

Mairena v. Barr (9th Cir. - March 7, 2019)

The opinion itself is only ten pages.  The panel didn't even need oral argument.

Yet the "Summary" prepared by the Reporter spans four pages.

Tighten that thing up.

Tuesday, March 05, 2019

People v. Joseph (Cal. Ct. App. - March 5, 2019)

You don't see many felony convictions for perjury.  You do here.  But it gets reversed by the Court of Appeal.

There are a lot of practical lessons to be learned from the opinion.  One is to be suspicious when someone asks to use your cell phone to purportedly call his grandmother.  The other is not to go to Taco Bell shortly before committing a robbery (and during the time you told the police that your car was stolen).

They've got video.