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.

Monday, March 04, 2019

U.S. v. Elmore (9th Cir. - March 4, 2019)

On first glance, this appears to be yet another case that involves careless or indifferent parenting.  One of many that you see daily when the appellate courts recite the facts.

Judge Bybee begins the tale by explaining that there was a minor girl -- L.G. (I'll call her "Laura" just to avoid initials) -- who moved from San Francisco to LA for a "fresh start" and lived with her cousin there.  While in LA, Laura started dating Calvin Sneed, a not-so-great character who was pimping young women there, and Laura eventually starts advertising herself on various prostitution websites.

Laura's family finds out about all this and tries to drag her away from Sneed.  Her mother travels from SF to LA one day to try to persuade Laura to return with her, but to no avail.  But three days later, Laura and Sneed drive up to SF, and Sneed drops Laura off at her parent's house at 4:00 p.m.  The parents again try to persuade Laura to leave Mr. (Alleged) Pimp and return to them.

All of that's great.  The mother is trying.  Hard.  There's perhaps only so much a parent can do, but she's making as much of an effort as humanly possible.  Good for her.

But it doesn't work.  Laura continues to argue with her mother about staying in SF and leaving Sneed, but at 12:15 a.m., Laura finally decides to return to Sneed and texts him to pick her up.  The effort to get her out of Mr. Pimp's clutches fails.

Then here comes the depressing part.  Your minor daughter has decided to go back to the pimp who's prostituting her.  Your wife is actively arguing with her, trying desperately to get her to reconsider.  All the while, Mr. Pimp is literally on the way to your home to pick up your daughter and take her away.  Yet, while Mother screams and pleads and begs, here's all that Father says to daughter:

"You grown. Before you leave, turn the lights off."

What?!  "You grown?!"  She's a minor.  Hardly in a position to intelligently decide to devote herself to sex work for Mr. Pimp.  And what the hell about the lights?!  Your daughter's leaving to return to prostitution, and all you care about is not having to get out of your chair and turn the lights off?!

Wow.

It just sounds so incredibly, stunningly heartless.  How can a father demonstrate such a lack of compassion and caring for the events around him?

So as I leave that paragraph, I have a definite view of the father.  And it's not a good one.  At all.

Total lack of caring.  Total lack of parenting.

But I was wrong.

Because here's (allegedly) what actually went down.  Yes, Father was facially uninterested.  But when Laura went outside to wait for her boyfriend, there's an SUV waiting outside with its lights on.  And when Mr. Sneed shows up, the SUV pulls up beside him and promptly shoots him in the head, killing him.

All allegedly set up at the direction (at least in part) of Father.

So you can say a lot of things about Father.  But the lack of caring that I first imagined when I read about his reaction to Laura leaving isn't one of them.  Because, yes, he didn't feel like continuing to argue, but that's because he thought that further discussion was useless.

And he had a far more direct plan to resolve the matter.  Kill the guy.

Today's opinion is about the validity of the warrant to search some cell phone location data, and it's an interesting one, with a majority opinion by Judge Bybee and a dissent by Judge McKeown.  So on the legal issues, worth reading.

But even on the non-legal front, it's also one where I thought one thing at the outset, and a very different thing at the end.

Proof positive that, in legal opinions as well as elsewhere, things are not always as they may initially seem.

Thursday, February 28, 2019

People v. Amezcua & Flores (Cal. Supreme Ct. - Feb. 28, 2019)

I read a lot of the California death penalty cases.  Indeed, for the past thirty years, all of them.

Even having read all those cases, with some incredibly terrible crimes, it's hard to have a lot of sympathy for these two defendants.  Their systemic crimes are pretty darn bad.  As are the things they say thereafter.

Plus, I gotta say, check out pages 49 through 54 of the opinion.  Both of them are pretty darn sophisticated in assessing whether being sentenced to death actually means they're going to die.  I'm not sure I agree with them about their tactical decision.  But they definitely thought about it at some length.  They thought it made more sense for them to be sentenced to death rather than life.  (And, in a bizarre reality, they cared -- weirdly, for good reason -- much more about the size of their restitution orders than whether they were sentenced to death or not.)

What a weird world in which we live.


Darrin v. Miller (Cal. Ct. App. - Feb. 21, 2019)

One of the downsides of deciding appeals that are relatively low value -- and hence may have less well developed briefing -- is that the judges may miss out on potentially relevant information.

That's the thought I had when I read this opinion.

It's a case out of Lake County.  Not the most populous county in the state, to be sure.  It involves a dispute between unfriendly neighbors.  One neighbor says the other trespassed on her property, took down a wire boundary fence, said bad things to her and her family, etc.  The point is:  This is not a multi-million dollar case.  So it only justifies a certain amount of litigation.

The plaintiff nonetheless gets a creative lawyer who files an Elder Abuse claim against the neighbor.  She can do that because she's 81 years old, so not only does she get sympathy -- who screams at an 81-year old?! -- but because if you're over 65, you've got a potential Elder Abuse claim.

But that statute is almost always invoked against family, carekeepers, rest homes, etc.  Can you really file an Elder Abuse claim just against a mean neighbor?

The trial court thought not.  But the Court of Appeal reverses, holding that you can.

It's a statutory interpretation case.  It's all about how you read the statute.  The Court of Appeal thinks it can do that just fine, thank you very much, and also doesn't say very nice things about the quality of the briefs by the respondent.

The statute says someone older than 65 can sue for "elder abuse," and that term is defined as “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment [of an elder] with resulting physical harm or pain or mental suffering.”  "Mental suffering" in term is defined as "fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress of the elder or dependent adult.”

Justice Miller reads that statute in a straightforward fashion.  She says, essentially, that, yes, the defendant hadn't allegedly engaged in “[p]hysical abuse, neglect, abandonment, isolation, [or] abduction" under the statute.  Yeah, those are admittedly the types of things that caretakers do, and hence is what the statute undeniably focuses on.  But, she says, that definition ends by saying that "other treatment with resulting . . . mental suffering" can qualify as elder abuse as well.  And here, given the broad definition of "mental suffering," the acts here -- even though undertaken by a non-caretaker -- qualify as "other treatment".  So the statute applies.

It makes sense.  Applies the words that are employed by the statute in a straightforward fashion.  What more could you want?

Okay.  Maybe.  Good job.

But as I was looking at the list in the statute, here was my thought.

Preface:  I'm not a big Latin guy.  Failed it -- literally -- in college.  Don't feel like I have to say particularly fancy clauses to impress other people.  Prefer to speak the one language that I actually know well.

That said, there's a Latin phrase -- a principle of statutory construction -- that seems pretty relevant to this case.  One that's nowhere in the opinion, and (perhaps) not in the briefing.

Ejusdem generis.

It's Latin for "of the same kind."  When a statute has a list, and they're all types of things of a particular type or class, we often exclude from the coverage of that statute (i.e., not part of the list) things that aren't part of that class.  Even if the plain language of the statute covers the thing.

For example, if a statute says that only "automobiles, trucks, motorcycles, tractors, and other motor-powered vehicles" are permitted to use, say, a given road, that list probably doesn't include airplanes or boats or submarines.  Even those are indeed "motor powered vehicles" and hence facially included under the statute.  You nonetheless read the statute the other way (unless there's a good reason not to).

At least that's a general rule.  And one that seems especially relevant when, as here, the list includes certain types of things and we're trying to figure out what the statute means when is has a residual clause that says "other".  'Cause that's even broader than the example I used.  You might want to say that if everything that's in the list is part of the same class -- e.g., are all types of things that only caretakers or people in a familial-type relationship can really do -- then maybe we should indeed do what the trial court did and limit that "other" category accordingly.  Even though "other" does indeed mean everything else that satisfies the statute.

Now, I'm not totally confident that everything in the list here is necessarily part of the same class.  It does indeed seem that the statute -- and the list -- is focusing on stuff that caretakers might do.  They hit them ("physical abuse"), "neglect" them, "abandon[]" them, "isolat[e]" them, and "abduct[]" them. That's definitely a list of things we commonly see in Elder Abuse cases, and since all of them seem to be of a class of things that caretakers do (indeed, some of them, like neglecting them, can likely only be actionably done by caretakers), maybe the trial court got it right.  Though I could totally see the contrary argument as well:  that anyone, for example, can physically abuse someone elderly, so the list is not necessarily all of a certain class.

The point is simply that it seems like this commonly applied principle of statutory interpretation -- ejusdem generis -- seems like definitely something that the Court of Appeal should at least consider. Yet it's nowhere even mentioned in the opinion, much less discussed.

Which I'm confident it would be -- in the briefs, at a minimum -- if this was a $50 million case with reams of fancy lawyers on both sides working full time on the thing.

But this is a civil TRO case involving neighbor Sandra Miller allegedly being mean to Jude Darrin, the 81-year old neighbor. So maybe the assistance the Court of Appeal obtains isn't always as fulsome as in those more expansive -- and expensive -- disputes.

The long and short of all this:  It might be helpful to at least add a couple of Latin words to this opinion.  Something to consider, at least.

Wednesday, February 27, 2019

MDQ LLC v. GKCJ (Cal. Ct. App. - Feb. 27, 2019)

I'm a reasonably intelligent guy.  Familiar with a lot of sophisticated legal jargon.

But even my eyes glazed over when I read Justice Grimes' summary of today's opinion:

"The question in this interpleader action is which adverse claimant was entitled to the interpleaded funds: a judgment creditor with a properly recorded judgment lien, or an assignee who did not file a financing statement with respect to distributions irrevocably assigned to it by the judgment debtor before the judgment lien was recorded. The answer depends on whether the assignment created a security interest that had to be perfected (but was not) by the filing of a financing statement under California’s Uniform Commercial Code (UCC or the Code)."

Not exactly the most exciting legal thriller ever invented.

** Spoiler Alert **

Respondent wins.

Ryan v. Real Estate of the Pacific (Cal. Ct. App. - Feb. 26, 2019)

Sometimes it's not really the trial court's fault that it made a mistake, and hence gets reversed.  To take but one example -- here, the losing party relied on Argument X below, but Argument X was meritless, and the trial court rejected it and entered judgment for the winner.  On appeal, the losing party totally abandons Argument X and instead relies on a totally different Argument Y.  With which the Court of Appeal agrees, reversing the judgment below.

Not the trial court's fault (though it might have done some research itself).  Not the Court of Appeal's fault, which is permitted -- though not required -- to consider new legal arguments on appeal.

Just an example of the Court of Appeal being (rightly) concerned about obtaining justice.  Even if it means reversing a decision below where the trial judge made a decision based on the information and arguments that he had available to him.

Monday, February 25, 2019

Orchard Estate Homes v. Orchard Homeowner Alliance (Cal. Ct. App. - Feb. 22, 2019)

Read about the trials and tribulations of living around Palm Springs and having your neighbors rent out their homes to short term renters.

The HOA had an election, and most of the homeowners (62%) voted to bar short term rentals.  But there's a supermajority requirement, so it failed.  At which point that same group tried to eliminate the supermajority rule.

The usual procedural machinations.  I can't imagine what a pain it'd be to have an ongoing fight with all of your neighbors about this issue.  Hard feelings on both sides, I'd imagine.

Nice and warm there, though.  At least vis-a-vis the weather.

Friday, February 22, 2019

People v. Escarcega (Cal. Ct. App. - Feb. 20, 2019)

This opinion is a reminder that it's not just drunk driving that can put you in prison.  As well as seriously injure others:

"On July 15, 2015, at 9:20 p.m., defendant was driving a 2012 Hyundai Elantra eastbound on Palmdale Blvd. He was on his way to work at Adelanto Detention Facility. That stretch of road has one lane of traffic in each direction and is divided by a broken yellow line. There are no streetlights. The speed limit is 55 miles per hour.

As defendant approached 110th Street, he saw two vehicles ahead of him. Shannon Emery’s Chevrolet Monte Carlo sedan was directly in front of him. A large delivery box-truck was in front of Emery. Neither Emery nor defendant could see whether there were any cars in front of the delivery truck, which also blocked their view of any headlights from oncoming traffic. Defendant estimated he was driving 45 miles per hour at this point, but Emery testified that she was going 70 miles per hour.

Though defendant could not see beyond the truck, did not know whether there were more cars in front of it, and could not tell how much space there was between Emery and the truck, he decided to pull into the westbound lane and pass both vehicles. When defendant pulled past Emery and attempted to pass the truck, however, he discovered it was following two or three more cars. As defendant drew parallel with the delivery truck, he saw headlights coming towards him. The headlights belonged to a Lexus sedan carrying Jessica, the driver, and her two nephews, Carlos (age five) and Gabriel I. (age four). Jessica was driving about 65 miles per hour in the westbound lane.

Emery, who by this time had seen Jessica’s headlights, eased off her gas pedal to allow defendant to pull in front of her. According to his statement to authorities, defendant tried to reenter the eastbound lane in front of Emery, but there wasn’t enough room, so he slowed down to retake his original spot. By that point, however, another car had pulled behind Emery, and he couldn’t get back in. Defendant swerved onto the left shoulder. Meanwhile, Jessica had seen defendant driving towards her, had made the same decision he did, and swerved toward the same shoulder. The cars collided, and Jessica blacked out briefly at the moment of impact. Emery saw the collision and called 911.

According to California Highway Patrol Officer Nathan Parsons, who testified as an expert on collision reconstruction, defendant had continued to accelerate until two and a half seconds before the collision. Five seconds before the collision, defendant was driving 67 miles per hour. Four seconds before the collision, he was driving 71 miles per hour. Three seconds before the collision, he was driving 73 miles per hour. And though defendant first stepped on his brakes two and a half seconds before the collision, he did not hit them hard enough to engage the Antilock Braking System until one second before impact. At the moment of impact, defendant was driving 42 miles per hour. Jessica was driving approximately 37 miles per hour.

When Jessica regained consciousness, her hands were on the steering wheel. Glass from the shattered windshield had cut her wrists. The engine was on fire. The children were screaming in the back seat. Defendant stumbled out of the passenger side of his car as Jessica tried to free herself. She yelled for help 10 to 20 times, but defendant just looked at her and walked away. Eventually, bystanders came to her aid, and Jessica and the children were transported to a hospital. . . .

Carlos went into hyperemic shock, had a collapsed lung, and was put on life support with a chest tube. He was in a coma for 10 days. He received multiple unsuccessful skin grafts from his legs to his arm, which required his mother to tend to an open wound from his wrist to his elbow. Carlos underwent more than 10 surgeries. He stayed at LAC +USC Medical Center from July 15, 2015, to August 4, 2015. Although he returned home briefly, he ultimately required additional surgeries and another hospital stay. Carlos, who was seven years old at the time of trial, showed the jury the injuries to his chest and legs. The jury also saw photographs of various skin and muscle grafts on his legs, chest, and arm.

Jessica remained in the hospital for three weeks. She had hip, knee, and ankle surgery to repair serious fractures; her ankle had to be “completely reassembled.” Jessica suffered additional fractures to her skull, four ribs, sternum, and lower spinal disk, as well as internal bleeding. She was confined to a wheelchair for six months, used a walker for three months, and had to modify her home to accommodate her inability to walk. She testified that she expected to undergo at least one more knee surgery."

Devastating.

The jury took just a little over an hour to find the defendant guilty of reckless driving that caused great bodily injury.  The trial court sentenced him to six years in prison.

The Court of Appeal affirms.

Thursday, February 21, 2019

People v. Bueno (Cal. Ct. App. - Feb. 19, 2019)

I don't know many of the underlying facts, since they aren't recounted in this opinion.  What I do know is that Vanessa Bueno was driving a vehicle while intoxicated and rolled it over, which in turn ejected her eight-year old son -- killing him -- as well as injured her teenage daughter.  And that Ms. Bueno pled guilty to gross vehicular manslaughter and was sentenced to 11-plus years in prison.

I can only imagine that pain and anguish caused by being directly and completely responsible for the death of your eight-year old child.  I'm not really sure how that plays into how much prison time you get for that offense.  Obviously, the mother gets sentenced to prison -- it's a serious crime.  Whether you need to pile on 11 years in addition to the lifelong pain of being responsible for your son's death is something I can't ascertain from a cold appellate record.

Ultimately the Court of Appeal remands for Ms. Bueno to be resentenced by the same judge that took her plea, since she never waived that right.  Maybe she'll get the same sentence.  Maybe not.

One thing's for sure.  Don't drink and drive.

Particularly when your kids are in the car.


Wednesday, February 20, 2019

Westport Ins. Co. v. California Cas. Ins. Co. - Feb. 20, 2019)

It's been a full week since the last published Ninth Circuit opinion.  A full week.  I know it's cold, and tough to get work done.  But that's precisely when we need to snuggle up in front of a warm fireplace and read appellate opinions for fun.  So let's get cracking, Ninth Circuit.

Fortunately, today, we finally get a published opinion.  Unfortunately, we only get one, and its about how to allocate a settlement payment between two insurance companies.  Zzzzzzzz.  I mean, sure, it totally matters to the relevant insurance companies.  And we're talking about a fair chunk of change here -- the settlement is for various molestation claims made against the Moraga School District and three of its administrators when a middle school teacher allegedly touched some students, and for the three plaintiffs, the total settlements were $15.6 million.

So, yes, a lot of money at stake.  And this particular insurance company's share of that liability was held by the district court to be $2.6 million -- plus another $750,000+ in prejudgment interest.  More than sufficient to justify hiring a law firm to try to get that allocation eliminated or reduced.

But for the rest of us, it's not a particularly enthralling case.  Particularly since the panel just ends up affirming the district court's decision -- largely for the same reasons articulated below.  Lots of legal arguments on appeal, but none that were persuasive.

So we now know that an excess insurer can indeed be forced to contribute to a primary insurer's settlement payment on behalf of a district and its administrators.  Okay.  Glad to hear it, I guess.

But for more excitement from the Ninth Circuit, we'll have to await another day.

Hopefully not another week.  We miss you, Ninth Circuit.

Monday, February 18, 2019

Sturm v. Moyer (Cal. Ct. App. - Feb. 15, 2019)

They say that law reviews are too theoretical these days, and don't actually help shape the actual development of the law.  I'm somewhat sympathetic to that view.

But this opinion talks at length about a particular law review article.  One published in the San Diego Law Review, no less.

So that's one exception.

Ultimately, the Court of Appeal decides to reject the arguments advanced by Professor Reppy in the relevant law review article.  But that doesn't mean the piece is irrelevant.  It still frames the debate and assists the court in deciding what to do.

The underlying merits are also worth discussing as well.  The Court of Appeal holds that a prenup can validly be attacked under the Uniform Voidable Transactions Act; e.g., as an agreement that defrauds creditors.  I'm a bit suspicious of that result.  And it also has immense practical significance.  If your potential spouse has a huge judgment against him/her, and you've got assets, of course you're going to do a prenup.  Otherwise the creditor's just going to grab your assets after the marriage. But after today's opinion, the creditor might still be able to take your stuff, on the theory that the prenup was a transaction that defrauded creditors.  That's a pretty darn huge deal.  And one that may well deter people from getting married to their suitor of choice.

Now, there's a reason, I think, the Court of Appeal came out the way it did here.  Because the prenup here was a particularly abusive one.  It said that the spousal assets would remain separate until the underlying judgment against the husband was no longer valid.  Then everything would be community property.  You can see why that sort of arrangement might lead the Court of Appeal to decide that some prenups might be voidable since they defraud creditors.

Still.  Bad cases make bad law.  I wonder if it wouldn't make more sense to just say, as a categorical matter, that prenups aren't subject to the statute.  If only because they made the creditor no worse off than it was before the marriage.  Before, it could only go after the husband.  Ditto for after.  No blood no foul.

But, now, that's no longer the law.  At least in California.  And at least as long as this opinion lasts.

Thursday, February 14, 2019

Perez v. County of Monterey (Cal. Ct. App. - Feb. 14, 2019)

Happy Valentine's Day! The Court of Appeal decides to give us some presents on this most solemn of days, with no less than four published opinions for us to peruse. Yay!

So I decided I'd talk about the one that is perhaps most likely to be viewed as a joke. One perhaps more appropriate for April Fool's Day than today, yet, here it is.

(1) The County of Monterey says that you can't keep more than 4 roosters on your property, unless you have more than 200 roosters. No joke. There are other exceptions too; little kids can keep more than four roosters, you can't keep more than four roosters if you've been convicted of cockfighting (but you can, apparently, keep fewer than 4 -- or more than 200), etc. In short, there's a sophisticated rooster-keeping set of regulations for residential property in Monterey. If you want to have between 4 and 200 roosters on your property, you've got to get a permit.

Who knew?!

(2) Plaintiff filed a lawsuit that claimed that these rooster-keeping regulations were unconstitutional, and deprived him of his property right to keep more than 4 roosters on his property, was a taking, violated the Interstate Commerce Clause, etc. etc. etc.

No joke either.

Look, the law here may well be mostly silly.  A lot of the exceptions are somewhat difficult to justify on a categorical legal basis.

But it's rational basis review. There's a reason why we might want to let little kids in 4-H programs, for example, have half a dozen roosters. Maybe it's not a particularly GOOD reason, but it's a reason.

Which is why plaintiff's challenge was doomed from the outset. As any good student of constitutional law would have been able to tell you. And as the Court of Appeal explains.

Just go ahead and get the permit, Mr. Perez. I hope and expect that if there's a good reason why you want or need, say, 20 roosters on your property, the County of Monterey will give it to you.

And why, hopefully, your neighbors won't subsequently hate you every single morning at dawn.


Wednesday, February 13, 2019

Szonyi v. Whitaker (9th Cir. - Feb. 13, 2019)

I'm going to blame the rainy (and cold) week for putting a damper on the publication of opinions by the California judiciary thus far.  Only one Ninth Circuit opinion, and only two California Court of Appeal opinions, all week.  Them's slim pickins.

But today's Ninth Circuit opinion nonetheless reveals a nice little dispute.  The question is what it means for two crimes to arise "out of a single scheme of criminal misconduct" sufficient to get you deported from the country.  Mr. Szonyi got extremely drunk one day and, over a five- to six-hour period, forced three women to commit various sexual acts.  Since Mr. Szonyi is formally a citizen of Hungary (who came to the United States in 1957, when he was four years old), even though he's been in the United States for over 60 years, that means he's subject to deportation.  Unless the crimes for which he was convicted arise (under the statute) out of a single scheme of criminal misconduct.

Judge Clifton writes the majority opinion, holding that Mr. Szonyi is out of luck.  He thinks these are discrete crimes against different women.  Judge Fisher dissents, and thinks that these might perhaps be a single scheme of criminal conduct, with no real "pause" in the offenses sufficient to allow Mr. Szonyi to reflect.  (As Judge Fisher puts it, "On this record, I would grant the petition for review and remand for the BIA to adequately explain its decision. BIA precedent clearly requires a “substantial interruption” between offenses, and Szonyi squarely placed this issue before the BIA. The BIA, however, did not address it, leaving us to speculate whether the BIA disregarded the “substantial interruption” requirement, in contravention ofits own precedent, or concluded that there was a “substantial interruption” between offenses in this case, but without saying so and without pointing to anything in the record to support that conclusion.")

See which opinion most closely fits your own views.  But, at least at this point, Mr. Szonyi is going to be deported from the country in which he's lived the past 60 years.

Tuesday, February 12, 2019

In Re Marriage of Yeager (Cal. Ct. App. - Feb. 4, 2019)

Justice Gilbert says in the second paragraph of this opinion that "California Rules of Court, rule 9.7, pertaining to the oath required when an attorney is admitted to practice law, concludes with, “ ‘As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.’" He then drops a footnote that says "Deletion of the words 'strive to' from the oath gives it the potency it deserves."

Which is a pretty big hint that some attorney is going to be in trouble here.

And trouble she is indeed in.

The Court of Appeal affirms a $50,000 (!) sanction award against an attorney, Lisa Helfend Meyer, who disclosed information contained in a confidential child custody evaluation report.  She didn't do it in open court, or in a filing, but nonetheless asked questions about that report in a deposition.  That, the Court of Appeal holds, is an unambiguous no-no.  Fully justifying the sanctions imposed by the trial court.

Plus the respondent gets awarded his costs on appeal.

There rules out there.  Pretty important ones.

Fail to follow them at your peril.

Monday, February 11, 2019

Jackson v. Kaiser Foundation (Cal. Ct. App. - Feb. 8, 2019)

The Court of Appeal holds that you can't get mandatory relief from an erroneous dismissal (i.e., employ CCP 473(b)) when the dismissal that you're challenging is your own request for dismissal without prejudice.  Even if you made a mistake based on erroneous legal advice, that's your bad. Had the case been dismissed by the court or on a motion, sure, you'd get relief. But since this was your call, not the action of someone else, CCP 473(b) doesn't apply.

Okay. Good to know, at least.

The holding is in a context that's somewhat interesting, however. The plaintiff here filed her lawsuit (for discrimination) pro per, and then sought to get an attorney to represent her. The attorney said "Sure, I'll take your case, but let's get rid of this pro per thing first -- dismiss it without prejudice, and then I'll file a new one for you that looks better." Which she did.

But after the first lawsuit was dismissed, the lawyer said: "Oops. I didn't know how FEHA suits worked. Seems like now, after the dismissal, your lawsuit is procedurally barred."

Which probably also made the attorney go back and check his malpractice coverage.

Seeking a way out, the attorney then said he'd represent the plaintiff on a limited basis to get the first lawsuit reinstated. That way, presumably, no malpractice claim for the bad advice. (To be clear: the word 'malpractice' doesn't exist anywhere in the opinion, but I'm just reading between the lines for a possible explanation for how this case came to be; pure speculation and opinion, obviously.)

So the attorney files an ex parte request, which the trial court denies, without prejudice to a noticed motion. So the attorney agrees to another limited representation agreement where he'll file a noticed motion, which he does, but the trial court again denies it. Hence the subsequent appeal.

So a nice attempt to get out of the malpractice claim by using CCP 473(b). Albeit one that fails.

On the other side, though, I thought it somewhat interesting that Kaiser -- the defendant -- thought it tactically advantageous to oppose the motion for relief from default, as well as the resulting appeal. On the one hand, that's the obvious move. It gets them out of the lawsuit without having to defend the merits. Typically, the right call. If only because it avoids the transaction costs of defending the thing.

But, on the other hand, they get out of that suit, but, presumably, into another. Now the plaintiff may file a malpractice claim against her would-be lawyer based on the bad advice. In which she'll have to prove her case-within-a-case against Kaiser. So now it'll have to defend all those depositions etc. in the malpractice suit. Plus it had to file all those briefs in the trial court and on appeal defending the refusal to reinstate the underlying action.

So some contrary transaction costs there as well.

All that, plus the risk -- which is at least nonzero -- that all this would be for naught if the Court of Appeal held that CCP 473(b) applied.

In the end, I suspect that Kaiser would make the same call again. But it's not an easy one. Sometimes, choosing a battle may not be the wisest call. Even when it's typically the most straightforward one -- and one that you might well win.

Wednesday, February 06, 2019

People v. Johnson (Cal. Ct. App. - Feb. 5, 2019)

This is pretty good police work.  Solved a murder down here in San Diego.  Mind you, there were TONS of video tapes available from the surrounding businesses.  Still.  Lots of effort clearly went into this one.

There's another lesson that one might learn from this opinion.  Don't steal drugs from someone who's running a large drug trafficking organization. And then sleep with his girlfriend.

Otherwise you might be shot in your barbershop, Sopranos-style, by a hit man in broad daylight. Ten of the fourteen shots hitting you.

Not an awesome way to go.

Tuesday, February 05, 2019

People v. Westerfield (Cal. Supreme Ct. - Feb. 4, 2019)

It was a long time ago.  But I remember it extraordinarily well.  As well am reminded of it every time I go over the Danielle Van Dam memorial overpass here in San Diego.

David Westerfield was convicted and sentenced to death for the high-profile kidnapping and killing of this seven-year old girl.

The murder was in 2002, and it has taken 17 years for the conviction just for the thing to get to the California Supreme Court for the first time.

To the surprise of no one, Mr. Westerfield's conviction and death sentence were unanimously affirmed.

Monday, February 04, 2019

Ward v. Tilly's (Cal. Ct. App. - Feb. 4, 2019)

Today's opinion matters a lot.  At least for a variety of low-paid workers, and perhaps for others as well.

The Court of Appeal reverses the trial court and revives a putative class action alleging that an employer (here, Tilly's) has to pay its employees wages when it tells them that they have to call in two hours before work starts to see if they're working that day.  Calling in counts as "reporting" for work.  At least according to the majority.  (The dissent, and at least one federal district court, says that the employee is not entitled to be paid unless she personally shows up for work during that two hour "call in" period.)

I must say that the majority opinion is at least persuasive on one point:  It's a total crock that the employer pays you nothing if you call in and they tell you you're not working that day.  The employer disrupted your life.  You couldn't make alternative plans that day since you potentially had to work (under penalty of being fired if you didn't show up).  You might have had to pay for child care or the like.  There's a reason for a minimum wage etc.  You shouldn't be paid nothing for the fact that your employer obligates you to arrange your schedule and potentially work on a given day, with only two hour's notice.

On the other hand, there's a line-drawing problem.  Do you really deserve to be paid for a whole day (or half day, or whatever) for a day you had to call in but didn't actually have to work?  What's the appropriate amount?  An hour?  Tough call.  Plus, there's no law that tells your employer how much in advance they have to tell you you've got a shift.  At least of which I'm aware.  Say your employer tells you a week in advance that you've got to work Thursday and Friday of next week.  I would think that's enough notice to not get you paid for, say, not working on Wednesday.

But what if they tell you your shift on Friday's; say, you often work Mondays, but on the Friday before, they say, nope, it's Tuesday next week?  Enough notice?  What if they tell you Friday that even though you normally work Saturdays, you're off this Saturday?  Is that enough?

Seems to me there should be a rule here.  And rules are generally made by the Legislature; courts have a tough time creating them.  (There's a proposed bill in the Legislature to accomplish something along these lines, but it's unclear whether it'll pass, and it probably would not resolve the exact issue raised by the present case anyway.)

Still, I'm not happy with a rule that says employers can make you arrange your schedule so you're available for nothing but work all day and then pay you nothing if it turns out two hours earlier they don't need you. Seems like that in fact might/should violate the relevant rules (e.g., Wage Orders).

So this putative class action survives for now.

Thursday, January 31, 2019

In re Marriage of Perow & Uzelac (Cal. Ct. App - Jan. 31, 2019)

Well, now, that's unusual.

You're used to seeing child molestation cases in the Court of Appeal.  Criminal cases.  SVP cases.  Guardianship cases.  All over the place.

Sometimes -- though much more rarely -- you even see molestation issues pop up in dissolution (divorce) cases.  Wife's making a claim, Husband's making a claim, etc.

But rarely do you see molestation issues in (1) high-value divorce cases, (2) involving a ton of attorney's fees.  (Which is perhaps not surprising, because sex offenders tend not to be fabulously wealthy.  With limited exceptions.)

So here, for example, you've got an otherwise run of the mill divorce case.  Two people get married in November 2000:  Richard Uzelac (Husband) and Catherine Perow (Wife).  What's a little unusual for the happy couple is that Mr. Uzelac was a convicted sex offender.  Which Ms. Perow apparently knew.

But she didn't know the details of the alleged offense.  Which, to me, seem pretty important; e.g., something that one should discuss prior to the actual marriage.

Those details are fairly important, since it turns out that Mr. Uzelac was convicted of molesting his stepdaughter for several years.  An even that, understandably, takes on a somewhat heightened significance when Ms. Perow gets pregnant and has . . . a daughter.

Mr. Uzelac and Ms. Perow separate, and then get divorced.  They share custody of the daughter, with Ms. Perow having primary custody.  Mr.  Uzelac gets custody of his daughter 7 to 12 hours a week, and Ms. Perow gets custody the rest of the week.  Fine.

A couple years later, Mr. Uzelac files a petition to change the custody arrangement to 50/50.  Thereby reducing his child support payments as well.

When Mr Uzelac filed his petition, can you guess what salient fact he neglected to mention to the Court?

Yes.  No mention of the fact that he was a convicted sex offender, nor the details of this offense.  Something that a trial court trying to figure out who should have custody of a daughter might want to learn about, no?

Ms. Perow opposes the petition and prevails.  And gets the attorney's fees she spent litigating the thing.  Nearly $150,000 worth.  "[B]ecause husband’s request for modification of the custody order had been 'fatally flawed from the outset because he did not disclose his status as a registered sex-offender,' and because husband had 'scuttled wife’s proposed settlement' at the last minute."

Plus, on appeal, Ms. Perow not only wins again, but orders that Husband pay her costs.

It's one little fact, that whole "sex offender" thing.  But it's a pretty important one.

Not something that you should leave out of your papers.

Tuesday, January 29, 2019

Dilberg v. California Check Cashing Svcs (9th Cir. - Jan. 29, 2019)

Sometimes it's difficult to be an attorney for an organization and to figure out how it should comply with relevant laws.

Sometimes it's not.

The Fair Credit Reporting Act (FCRA) says that if you're an employer who pulls a credit report on applicants for employment, you've got to make a particular disclosure to that applicant contained "in a document that consists solely of the disclosure.”

It's not hard to comply with that.  Make the relevant disclosure in a separate document.  Don't combine it with other stuff.  Use a separate piece of paper.

Sure, it kills some additional trees.  But that's clearly what Congress requires.

Not difficult.

If you fail to figure that out, you can be sued in a class action.

Which is a pain.  And kills a lot more trees.

So just put the thing in a separate document.  You'll be happy you did.

Monday, January 28, 2019

Karingithi v. Whitaker (9th Cir. - Jan. 28, 2019)

Serah Karingithi, a native of Kenya, overstayed her six-month tourist visa in 2006.  The United States eventually moved to deport ("remove") her in 2009.  She's been in the United States the whole time, including the resulting decade of various removal proceedings.  All of which have not gone well for Ms. Karingithi.

Given this lengthy history, it would surely be surprising indeed were the Ninth Circuit to have held that all these proceedings were for naught because the paper that notified her of the very first of them (in 2009) contained the location of the place at which she was required to appear and defend herself but listed the date and time as "TBA".  After all, she was informed of that time and date in a separate document, showed up, and also showed up at the plethora of later hearings.  Wouldn't it be crazy if the whole exercise as meaningless due to an alleged notice failure that didn't harm anyone?

Now, I know what you're thinking.  I'm going to say:  "Yet that's exactly what the Ninth Circuit held."

Nope.  The Ninth Circuit went the other way.

Which makes total sense.  To me, anyway.  As well as to the panel.  In the old days, there might be a more robust fight about whether the initial omission deprived the court of "jurisdiction" to hear the underlying removal petition.  But in the last decade or so, the Supreme Court (alongside lower federal courts) have been making foundational principles less and less formalistic.  Very few things are indeed "jurisdictional" anymore.

Today's case is but the latest example.

And, on this front, I'm not exactly shedding a tear.

A practical and common sense result.

Thursday, January 24, 2019

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

You give the police one story when they first question you.  Then they confront you with various pieces of evidence they've already obtained, and then you tell them a different story.

The second story's usually just as unpersuasive -- indeed, often even more so -- than the first one.  And typically just incriminates you even more.

Here, for example.

Just be quiet.  You're not going to help yourself.  Just the opposite.

Better yet, don't commit the murder in the first place.

Wednesday, January 23, 2019

People v. Taggart (Cal. Ct. App. - Jan. 23, 2019)

Hmmm.  I could come out either way on this one.

It's the ancient problem of how old language covers -- or doesn't cover -- new facts.

Moonshadow Taggart gets convicted of buying or receiving a stolen vehicle and gets sentenced to two years in county jail.  But a around six months before his release date, he gets released from jail pursuant to a program called "sheriff's parole" -- a term I haven't heard before, but that apparently exists.  Neither I nor the Court of Appeal knows precisely what "sheriff's parole" entails.  Footnote two of the opinion explains that "No party refers us to rules or regulations governing the Kern County sheriff’s parole program, and the program’s terms are not in the record."  But what we do know is that under this program, Mr. Taggart wasn't supposed to leave Kern County (or the state).

Which, of course, he subsequently did.  Hence the opinion.

Which revolves all around whether that counts as an "escape" from custody.

On the one hand, we wasn't allowed to leave the state, and he did.  So you could say that since he was subject to a certain degree to restrictions on his freedom, which he then violated, by doing so, he in essence "escaped" from that custody.

On the other hand, yeah, he had some limitations on his freedom, but he was basically at large in the population, rather than in "custody" (at least as we typically define the term).  We certainly wouldn't call it "escape" if someone on parole violated, say, a condition that said "Don't use drugs" -- that'd be a parole violation, but not an escape.  Unclear why violating this particular provision ("Don't leave the county.") suddenly counts as the much more serious offense of escaping from custody.

Given these competing principles, you can perhaps understand why there's a majority opinion and a dissent here.  The majority opinion (written by Justice Snauffer) says it's not an escape.  The dissent (Justice Levy) says it is.

No easy answer to this one.  We all know that a horse is a horse and a duck isn't a horse, but figuring out the precise contours of what's in the middle isn't always easy.

The same is true with respect to an "escape" from custody.

Zhang v. Jenevein (Cal. Ct. App. - Jan. 23, 2019)

Don't secretly record other people.

And don't be surprised that secretly recording other people isn't protected by the anti-SLAPP statute.

Tuesday, January 22, 2019

In re Volkswagen Clean Diesel Litigation (9th Cir. - Jan. 22 2019)

You're an attorney and, on behalf of your clients, you filed one of the many lawsuits against Volkswagen about its fake "clean diesel" claims.  The class action of the century.  The class eventually recovers a settlement of $10 billion.  You're going to make a mint, right?!

Wrong.

Because the overwhelming majority of these lawyers are not appointed class counsel.  So they do work.  Lots of it, allegedly.  After the settlement, these non-class lawyers file not one, not two, but 244 motions for attorney's fees.  Every single one of these lawyers wants to get paid.  Because the recovery is massive, right?  Their view is that they helped.

The district court refuses to give these counsel even a penny.

The Ninth Circuit affirms.

You know it's going to be a significant case when you scroll through the caption.  I've never seen one this big before.  Even on appeal, it's 35 pages long.  Just the caption.

Big case.  Big recovery.  For some.

Not so much for others.

Monday, January 14, 2019

Ricasa v. Office of Administrative Hearings (Cal. Ct. App. - Jan. 14, 2019)

Were I a professor employed by a University -- which, coincidentally enough, I am -- and had to plead guilty to (essentially) corruption, alongside being pilloried in the press as a participant in the "South Bay Corruption Scandal," I'm not sure that I'd care deeply about my particular status at the University.  More likely, I'd just feel pretty fortunate to still have a job.

But Arlie Ricasa feels otherwise.  She was at Southwestern College -- even serving as interim Dean at one point, apparently -- "until she was selected to serve as Southwestern's director of Student Development and Health Services (DSD), an academic administrator position."  A nice, tenured position.  But then, after that whole "pleading guilty" thing, she was "demoted . . . from an academic administrator position to a faculty position on the grounds of moral turpitude, immoral conduct, and unfitness to serve in her then-current role."  So she sues.

Personally, I wouldn't call being moved from "an academic administrator position to a faculty position" a "demotion".  I'd see it more like manna from the grace of God.  But, hey, that's me.  I'm reasonably confident that being an administrator at a University is one of the various circles of Hell. Whereas being a faculty member is reserved for reincarnated versions of Ghandi and the like. Maybe you won't accomplish much in this life, but hey, here's your reward for all those good deeds you did in your prior version.  Sit around and write and talk about whatever you feel like and get paid for it.  Enjoy.

But, again, that's just my personal take.  Plus, if I ever had a similar administrative position to Ms. Ricasa's, I'd be "Dean Martin."  Too weird.

Regardless, she files a writ, but loses.  Next time, maybe don't take that $1800 from a vendor (during business hours at Southwestern, no less) so your daughter can attend a "conference" st some fairly nice place, I imagine.  Then not report it.  Ain't going to look good on your resume.

Though, remember, you're still a faculty member.  So anything marginally bad you did in this life undoubtedly pales in comparison to (1) the rest of your cushy world, and (2) what got you there in the first place.

At least if you believe in that whole karma and reincarnation stuff.

None of which strikes me as true.  But still cool to think about.

Thursday, January 10, 2019

In Re E.T. (Cal. Ct. App. - Jan. 10, 2019)

The Court of Appeal holds late today that this is "the rare case where the juvenile court erred in failing to recognize that Mother’s relationship with her children outweighed the benefit to the children that would accrue from termination of parental rights and a plan of adoption."  So it gives the kids back to the Mother.

Read the opinion.  Mother's got a lot of things going for her.  She's apparently working hard.

But there are several things against her as well.  Those are in the opinion as well.

Justice Siggins may be right that the children will be better off with Mother than with their godparents.  But he also may well be wrong.

It's difficult to square this opinion with the "substantial evidence" standard on appeal.  The trial court saw the witnesses.  A cold record is a pale substitute, especially in these types of cases.

I hope that Justice Siggins is right.  I hope we never see this family back in court.  I hope the kids don't end up being taken away (yet again) from Mother.

But I'm not supremely confident that's how things will in fact play out.

Here's hoping for a good result.

Tuesday, January 08, 2019

U.S. v. Torres (9th Cir. - Jan. 8, 2019)

Welcome back, Ninth Circuit!

After a virtual hiatus for nearly two weeks, a Ninth Circuit panel finally publishes an opinion this morning.  And it's a goodie!

Amongst other questions raised, but not decided, by the opinion are whether aliens who are in the United States without authorization are included in the phrase "the people" to whom various rights are given under the Constitution.  Interesting stuff.

It's also a case that splits the left-right spectrum.  On the one hand, it involves whether unauthorized aliens have various rights.  On that question, conservatives generally like to say "No," whereas those on the left generally like to say "Yes."

But in this case, the right in question is the Second Amendment right to possess a gun.  When that's the right at stake, conservatives generally are in favor of it, whereas those on the left are generally opposed.

So what say ye?  Federal law makes it illegal for an unauthorized aliens to possess a weapon.  A violation of the Second Amendment, or not?

The Ninth Circuit says -- correctly, in my view -- that the statute's valid.  The panel assumes without deciding that the Second Amendment applies.  But holds that under intermediate scrutiny (which I agree is the proper standard here), the statute's valid because it advances an important governmental interest with a reasonable fit.  In the words of the Ninth Circuit -- largely quoting from other circuit authorities:

“The [government] has the important government interest of ensuring the safety of both the public and its police officers. . . . These government interests are particularly applicable to those subject to removal. “[T]hose who show a willingness to defy our law are . . . a group that ought not be armed when authorities seek them.” Huitron-Guizar, 678 F.3d at 1170. If armed, unlawful aliens could pose a threat to immigration officers or other law enforcement who attempt to apprehend and remove them. Further,“[unlawful aliens] often live ‘largely outside the formal system of registration, employment, and identification, [and] are harder to trace and more likely to assume a false identity.’” Meza-Rodriguez, 798 F.3d at 673 (quoting Huitron-Guizar, 678 F.3d at 1170). Therefore, “the ban on the possession of firearms by [unlawful aliens] is substantially related to the statute’s general objectives because such persons are able purposefully to evade detection by law enforcement.” Id."

Good to have the Ninth Circuit back.  Glad to see it begin 2019 with a bang.

Monday, January 07, 2019

Strawn v. Morris, Polich & Purdy LLC (Cal. Ct. App. - Jan. 4, 2019)

The Ninth Circuit continues its apparent vacation -- only one published opinion since December 28, 2018 -- but. fortunately, the California Court of Appeal continues to crank things out.

This opinion takes a very restrictive view of the litigation privilege.  I'm not saying that Justice Kline is wrong in that regard; this is a demurrer after all, and it may well be appropriate to wait until the summary judgment stage to decide whether there was "really" a threat of litigation here sufficient to establish the privilege.

But, on these facts, I gotta say, I'm much more confident that there was in fact a privilege than Justice Kline appears to be.  Yeah, the insured hadn't yet filed a lawsuit, or expressly said he was going to do so.  But the guy's property burned down, the guy was being criminally investigated for arson, and the insurance company was thinking about not paying due to arson.

There's no doubt whatsoever in my mind that, on these facts, the insurance company knew full well that there was not only a likelihood of litigation if it denied the claim on the basis of arson, but that there was a super high likelihood of litigation.  Of course the guy's going to sue if you don't pay him (and he's not eventually convicted of arson).  Why wouldn't he?  No doubt whatsoever.

Hence the privilege.

Justice Kline's opinion seems to hint that something more might be required.  Which I'm not certain is true.  On these facts -- at least at the summary judgment stage -- I have extraordinarily little doubt as to how I'd come out on whether the litigation privilege applies.

Because I'm confident that the insurer both recognized and fully anticipated the threat of litigation.

As would any insurance company not staffed by morons.

Friday, January 04, 2019

Doe v. Allee (Cal. Ct. App. - Jan. 4, 2019)

This is another Title IX sexual assault hearing case.  This time involving USC.  Another holding that the University's hearing procedures are fundamentally unfair.

As for the particular offense here, it's another profoundly troubling set of facts.  Read the whole thing for the graphic details.

You can't figure out from a cold appellate record, of course, whether the alleged victim or perpetrator is more credible.  But there are nonetheless some undisputed facts here that, in my view, make the alleged perpetrator -- in this case, a member of the USC football team -- look particularly bad.

To take but one example, the alleged victim stated that during the nonconsensual encounter (the victim alleged that she was held down, etc. etc.), "Doe pulled out to finish and it looked like he planned to ejaculate on her face or torso. When he let go of her, Roe “freaked out [and] went between his legs, scooting out quickly.” Doe ejaculated on the sheets."  The alleged perpetrator's version of these particular details is only slightly different:  "Regarding the October 24 sexual encounter, Dr. Allee asked how Doe knew Roe wanted him to pull her hair, to which Doe responded, “I didn’t. We were in doggy position. I just assumed she’d like it.” Similarly, when asked how he knew Roe wanted to swallow his ejaculate or to have him ejaculate on her face, Doe said, “I didn’t, but if she didn’t want to she could get out of the way and she did.”

That last part doesn't sound like someone profoundly concerned about consent.

USC ends up finding the victim more credible and expels the alleged perpetrator.  The Court of Appeal decides that the University's system was fundamentally unfair, so reverses the finding of sexual assault and expulsion on that basis.

But halfway through the opinion, there's this nugget.  Which, though perhaps technically irrelevant to the issue of credibility, is definitely something of which the reader takes notice:  the fact that, after his expulsion, the alleged perpetrator was apparently "charged with committing several felonies near USC, and, in April 2016, sentenced to six years in state prison, a sentence he was serving when the petition was heard. In August 2016, Doe was expelled for independent violations of the SCC [and] as a result . . . regardless of this Court’s decision, Doe is no longer eligible to return to USC."

Another fact which, if true, doesn't say particularly positive things about Mr. Doe.  (Here's a couple of public links that relate to a particular USC football player).

Yu v. Liberty Surplus Ins. Co. (Cal. Ct. App. - Jan 4, 2019)

There's nothing from the Ninth Circuit yesterday or today.  But the California Court of Appeal steps up to the plate, and this afternoon published an opinion with a very helpful -- and easily remembered -- pointer for civil litigants.

When you're drafting a complaint (or, as here, a cross-complaint), do not ask for damages "according to proof".  Ask for a particular number.  Otherwise, even if you obtain a default judgment, it won't stick.

Words to the wise.

Thursday, January 03, 2019

Brown v. Mortensen (Cal. Ct. App. - Jan. 3, 2019)

I'm sure that trial judges appreciate it when the Court of Appeal expressly recognizes that the work performed below is (1) important, and (2) doesn't always have the same inputs as the particularized efforts undertaken on appeal.

So, in this opinion, Judge Wiley (from Los Angeles) gets reversed.  I'm sure he's not ecstatic about that.  But that he nonetheless appreciates the opening two paragraphs of Justice Currey's opinion:

"This case resolves two obscure and previously unaddressed state constitutional issues: Does article I, section 16 of the California Constitution guarantee the right to a jury trial for (1) nominal statutory damages claims, and/or (2) claims for attorneys’ fees, under the Confidentiality of Medical Information Act (CMIA) (Civ. Code, §§ 56 et seq.1)?

With little useful guidance from the parties, no controlling precedent, and the three-year post-remittitur deadline for bringing the case to trial about to expire, the experienced and highly regarded trial judge concluded it does neither. With more time to reflect, further development of case law, and some modest additional input from the parties, however, we reach a different conclusion. We hold that jury trial is guaranteed for CMIA’s nominal statutory damages claims brought before 2013 under section 56.36, subdivision (b)(1), but not for attorneys’ fees claims under section 56.35. We therefore reverse the trial court’s judgment (which was entered after a bench trial) and remand for jury trial on both the nominal statutory damages claims and a remaining compensatory damages claim."

Wholly apart from the Court of Appeal's expressly laudatory statement about Judge Wiley ("the experienced and highly regarded trial judge"), the Court of Appeal also recognizes that the issue was a complex one and the procedural setting of the dispute far from ideal.

In short, if you're a trial judge who's going to get reversed by the Court of Appeal, something like this is probably how you want it to happen.

Wednesday, January 02, 2019

Lief v. Superior Court (Cal. Ct. App. - Jan. 2, 2019)

It's a Tale of Two Cities in the California judiciary as we begin 2019.

The one published opinion from the Ninth Circuit thus far is this one -- an 86-page, single-spaced tome from the en banc court that's all about how much in attorney's fees someone gets from being wrongfully included on the federal government's "no fly" list.  Is it $125/hour (the usual cap)?  More because the government litigated in bad faith? Should the hours spent on one claim be recoverable when granting relief on a different claim made that claim moot?  The Ninth Circuit waxes poetic on these and other issues in 86 dense pages that includes a partial dissent.  Big, fat reading.

Meanwhile, on the California state side, the only thing published we have is this one.  It's four pages.  Double spaced.  That basically says as fast as one can say it that when there's a 30-day stay on move-away orders (here, letting one divorced parent move to Israel with the kids), that actually means 30 days. Not 15.  Not exactly dense reading.  Extraordinarily straightforward.  (Indeed, once the Court of Appeal decided to hear the writ and stayed the trial court's order, the prevailing party stipulated below that she wouldn't leave until the 30 days expired on December 7, 2018. So the whole thing's sort of moot at this point. But the Court of Appeal nonetheless issued its opinion on December 6th and then published it today.)

So choose your poison in 2019.  Want to read an incredibly complicated, lengthy opinion about which multiple people disagree?  Or a nice little short one that's pretty simple?

Up to you.