Friday, August 23, 2019

Edmo v. Corizon (9th Cir. - Aug. 23, 2019)

It's fairly unusual for a high-profile, 84-page opinion to be per curiam rather than signed by its author.

Yet here you go.

I wonder if the author of the opinion prefers to remain anonymous, for professional or other reasons.

Read the subject matter and try to figure out why the author of such a lengthy (and careful) opinion might want to just be part of a panel opinion.

Rank speculation, of course.

Huerta v. City of Santa Ana (Cal. Ct. App. - Aug. 23, 2019)

It's undeniably tragic that three little girls were run and killed on Halloween night in 2014 as they crossed the street in a marked crosswalk.  The person who hit them fled the scene but was captured two days later.

The dissent says that the accident might have been caused by a tree that cast shadows that evening onto part of the crosswalk.  But that's the dissent.

The majority says there isn't a genuine issue of material fact; the shadows didn't cause the accident, which was instead caused by a hit-and-run driver who was going between 50 and 70 miles per hour -- on Halloween evening, no less -- on a street that had trick-and-treaters dressed in all black and a posted speed limit of 25 mph when kids were present (and 45 mph otherwise).

Just because you have an expert doesn't mean that you'll necessarily get to trial.  As here.


Thursday, August 22, 2019

Nicholson v. Gutierrez (9th Cir. - Aug. 22, 2019)

The Ninth Circuit gives the plaintiffs in this case some good news and some bad news.

The good news is that they get to go to trial on the theory that they shouldn't have been detained in handcuffs for five hours.  Which is nice, since all they were doing was hanging around before school listening to rap music and getting on their school uniforms.

The bad news is that they don't get to seek relief for something far more serious:  Getting shot in the back by a police officer for no good reason.  Yes, it violated the Constitution.  Yes, a police officer should not shoot someone in the back, even if he has a plastic airsoft gun (with an orange tip) that's not being pointed at anyone as he and his friends hang out before school.  But the Ninth Circuit says that wasn't really clear before now, so there's qualified immunity.

So no relief for being shot.  But feel free to get damages for the five hours you spent in handcuffs.

Small "victory".

Ray v. County of Los Angeles (9th Cir. - Aug. 22, 2019)

How many cases do you see that decide whether a lawsuit is barred by the Eleventh Amendment?

Not many.  But you get one today.

Tuesday, August 20, 2019

Williams v. Superior Court (Cal. Ct. App. - Aug. 20, 2019)

I don't know.  Maybe.

A prosecutor makes a mistake.  There's a grand juror who finds out she's not going to get paid for her time, so she asks to be excused, and the prosecutor says okay and excuses her.

That's wrong.  The prosecutor can't do that.  Only a judge can.  (Of course, there's no judge there at the time, which is why the prosecutor thought it was his job.  Even though it's not.)

So the question is whether that requires dismissal of the indictment.

The Court of Appeal says it does, because having the prosecutor be the one who dismisses the grand juror makes it look like the prosecutor is controlling everything and the grand jury might accordingly be beholden to him.

Hmmm.  Maybe.  Though I suspect that's not what most of the grand jurors think.  At all.  The basic structure of the grand jury already gives the prosecutor a "lead" function, at least perceptually.  When you're dealing with what seems like a routine thing -- a hardship request -- I doubt whether the grand jurors think that having the prosecutor say "That's fine, you're excused" is anything more than a pure administrative function.  I'm not sure it really makes the grand jury think that the prosecutor is totally in charge, or akin to a judge.  Or at least not more than the preexisting fact that the prosecutor is the only key government official that the grand jury typically sees on any given day.

So, yeah, a mistake definitely transpired.  But it was an honest mistake, and one that I'm not certain really mattered at all.  Particularly since there were still 18 grand jurors left, and it only took 12 to return an indictment.

So maybe the grand jury was really swayed by what transpired here.

But I tend to doubt it.

Dryoff v. Ultimate Software Group (9th Cir. - Aug. 20, 2019)

Have a sports injury. Get addicted to opioids. Buy heroin online. Die when it's unknowingly laced with fentanyl.  Sue.  Lose.

A life in twenty words.

Monday, August 19, 2019

U.S. v. Shayota (9th Cir. - Aug. 19, 2019)

"Counterfeit Five-Hour Energy Bottles and the Fifth Amendment."

Available for your review here.  Courtesy of Judge O'Scannlain.

U.S. v. Cuevas-Lopez (9th Cir. - Aug. 19, 2019)

An Obama appointee writes an opinion that says that someone should be locked up longer for illegal reentry after deportation, and a Bush appointee dissents, saying that he should be locked up for less.

What a world.

Thursday, August 15, 2019

People v. Sanchez (Cal. Ct. App. - Aug. 15, 2019)

A 33-year old (Adult) hangs out with a 13-year old (Kid). At 3 a.m., Adult and Kid have seven or eight French-kisses.  During the next three months, Adult and Kid -- now 14 -- engage in a ton of secretive text and instant messages, with Adult repeatedly expressing love for Kid, buying presents, etc. On the night before the Super Bowl, Kid sneaks out of the house and meets up with Adult, and they French kiss again, Adult kisses (and leaves a hickey) on Kid's bare breast, etc.  Kid eventually tells the story to a teacher, who reports the whole thing to police. Adult is criminally charged and convicted.

No prior criminal history for Adult. What's the appropriate sentence for Adult?

(A) 20 years in prison.
(B) 12 years in prison.
(C) 5 years in prison.
(D) 2 years in prison.
(E) Probation.

No actual sex.  But a fairly long history of grooming and molestation.  And Adult is 33 and Kid is 13 and 14.  Big gap.

Oh, and if it matters:  Kid is Adult's step-grandfather's niece.  So it's a familial thing.

So what's right?

Got your answer?

Now for the actual sentence that gets imposed in this case.  I suspect it's not the same as the choice you made.  The actual sentence is at one of the two extremes of the options I gave.  (A) or (E).

Which do you think?

Answer:  Probation.  Straight up.

Does it matter that Adult's a woman, and so is Kid?

You don't see many probation sentences these days when a 33-year old repeatedly molests a 13-year old extended family member.

Tuesday, August 13, 2019

In re NFL Sunday Ticket (9th Cir. - Aug. 13, 2019)

Do you watch DirecTV's NFL Sunday Ticket?  If so, today's Ninth Circuit decision may ultimately get you a check.  Way, way down the line.  Maybe.

The Ninth Circuit holds that the forced bundling of all the NFL games might violate the Sherman Act.  It's a split opinion, but at least for now, the district court's dismissal of the suit is reversed.  I'm confident there will be an en banc petition and a petition for certiorari.  Both non-frivolous.

But for now, the case is revived.

Monday, August 12, 2019

People v. Flores (Cal. Ct. App. - Aug. 12, 2019)

The distinctions that we draw in search and seizure jurisprudence are sometimes such fine ones.

The Supreme Court says that "headlong flight" plus "narcotics area" plus "has a bag" lets you search. At least at night.  But what if it's just a normal "flight" -- not really all that speedy?  What if it's only described as a "high crime" area?  What if it's during the day?  What if there's no bag?

Here, the Court of Appeal says "normal" flight plus "high crime area" plus "during the day" doesn't give you the right to search.

At a more abstract level, it seems like the police just wanted to swoop down on this one alleyway -- where gang members gathered -- and search everyone there. Maybe on the theory that they had probable cause just because there was, typically, a lot of crime there. Or maybe in the hope (and expectation, likely) that someone would run, and boom, all of the sudden, probable cause.

Which works from a policing standpoint. Less so for the citizens standing in the alleyway.

Wednesday, August 07, 2019

ClipperJet, Inc. v. Tyson (Cal. Ct. App. - Aug 7, 2019)

Here's proof that common sense sometimes prevails.

The usual rule is that removal to federal court is self-activating (e.g., you don't need permission of either tribunal) and that, post-removal, the state court lacks jurisdiction to do anything unless and until the case is remanded. Makes sense, and a well-known principle.

But, here, the defendant removes (frivolously), gets remanded, and then later removes again. And the second removal is even more frivolous than the first one.

Now, to be honest, what the state court should have done was to simply waited until the second remand. Which would have come fairly quickly. But, instead, since a motion to strike was fully briefed and in front of it for a hearing -- even though the second removal had transpired three days earlier -- the state court went ahead and decided it.

The Court of Appeal holds that's okay. There's an exception to the general rule. When the removal is totally frivolous, the state court's not deprived of jurisdiction. That'll stop people from, say, removing the case a thousand different times.

Just as the general rule makes sense, so does the exception.

Monday, August 05, 2019

Sheen v. Wells Fargo Bank (Cal. Ct. App. - Aug. 5, 2019)

Justice Wiley authors an extremely well-written (and relatively concise) opinion today. One that admittedly creates split in the Court of Appeal. 

As Justice Wiley frames the issue (and its proper resolution):

"Homeowners in mortgage trouble may try to negotiate a better deal. If mortgage modification negotiations fail and the borrower falls behind, the lender may foreclose, sell the house, and evict the homeowner. In a nutshell, this happened to borrower Kwang Sheen with his lender Wells Fargo Bank, N.A. (Wells). Sheen sued Wells in tort for negligent mortgage modification and other claims. The trial court sustained Wells’s demurrer, partly because Wells did not owe Sheen a duty in tort during contract negotiation.

The issue of whether a tort duty exists for mortgage modification has divided California courts for years. The California Supreme Court has yet to resolve this division. We must take sides.

We join with the old rule: no tort duty during contract negotiations. Our small contribution to this extensive debate is to use the general approach of the recent Supreme Court decision in Southern California Gas Leak Cases (2019) 7 Cal.5th 391 (Gas Leak Cases). The Gas Leak Cases decision was not about mortgage modifications, but it gives us guiding sources of law about whether to extend tort duties when, as here, there is no personal injury or property damage. Seeking wisdom, the Supreme Court considered decisions from other states as well as the Restatement of Torts. We do likewise.

These sources of law decisively weigh against extending tort duties into mortgage modification negotiations. The majority of other states are against it, and the most recent Restatement counsels against this extension because other bodies of law—breach of contract, negligent misrepresentation, promissory estoppel, fraud, and so forth—are better suited to handle contract negotiation issues. We therefore affirm."

That's an important, and recurring, issue. I don't have a definitive view as to what the right rule should be, though Justice Wiley's opinion does an outstanding job of arguing for the "old rule."

I'm nonetheless confident that whether you have a valid lawsuit shouldn't depend on the vagaries of which appellate panel you draw. So the California Supreme Court should grant review of this opinion and settle the matter once and for all.


Friday, August 02, 2019

Ranch at the Falls LLC v. O'Neal (Cal. Ct. App. - July 31, 2019)

A picture is sometimes worth a thousand words. So I appreciated the Court of Appeal's attachment to this opinion of a map -- in color, no less -- the describes the various properties, streets, and alleged easements.

Unfortunately, at least to me, the map is only worth around fifty or so words. In part because the big blue line ("Fern Ann Falls Road") doesn't seem to connect to the big green line (the alleged easement route) like it seems like it should. Unless that little blue, umarked line, which looks like a stream or a lot line, is an actual road that the opinion doesn't discuss.

Still, at least there's a map. Even if I can't 100% follow it.

We appreciate the effort, Justice Grimes.

Lee v. Department of Parks and Recreation (Cal. Ct. App. - Aug. 1, 2019)

In a world with more internet access I'd do a quick study, but for now, I'll just pose the question:

When an opinion begins by saying that a plaintiff "injured herself" (or himself) in a particular accident, does that tend to suggest that the Court of Appeal is going to find for the defendant?

That's the sense I got when reading the first sentence of this opinion.  ("Plaintiff Michele Lee injured herself on a stairway in the Bootjack Campground within Mt. Tamalpais State Park . . . .")  And it turned out to be right; the grant of summary judgment in favor of the defendant was affirmed.  (Though the Court of Appeal did reverse the fee award against the plaintiff.)

Saying that someone "injured herself" suggests that the fault was with the plaintiff.  "Was injured" is more neutral. I suspect that use of the former may give some insight into the mindset of the author.