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.