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.