O'Grady v. Merchant Exchange Productions (Cal. Ct. App. - Oct. 31, 2019)

If you're a company and you add a mandatory "service charge" to the bill, does that constitute a "gratuity" (i.e., tip) that has to be shared only with the relevant service people?

The Court of Appeal says:  "Maybe."

When I first thought about it, that answer didn't seem particularly compelling.  But the more I thought about it, the more it seems to me that the Court of Appeal's answer is correct.

I could imagine lots of "service charges" that fairly clearly aren't gratuities (at least to me).  Even if they're invoked in the traditional food and beverage industries.  For example, say a business added a $3.00 "service charge" for room service, and had a separate category on the bill for a tip.  To me, that charge is fairly clearly not a gratuity.

By contrast, imagine that the hotel adds an 18% "service charge" on to room service bills, and does not include a line for tips.  Well, to me, I'd almost certainly think that's going to the server.  That's a gratuity to me.

I can imagine a million different types of variations.  Here, it's a 21% service charge imposed by a banquet facility.  Well, it's close to 15 and 18 percent, which is the typical "tip" amount.  But it's not exact.  And it's on banquet stuff, which is not a totally mainstream tipping area.  So I could see someone going either way.

Which is what the Court of Appeal is basically saying.  It depends on the fact.  There's no categorical rule.  Sometimes "service charges" are tips.  Sometimes they're not.  Depends on a ton of things.

Not a bright-line rule, so it'll have some transaction costs and uncertainty.  But still the right rule.

Hodges v. County of Placer (Cal. Ct. App. - Oct. 29, 2019)

I get it, Court of Appeal.  I really do.  You're saying that just because the County put the money that belonged to the plaintiff into a "trust" account doesn't mean that there was actually a "trust" (e.g., fiduciary) relationship between the parties.  Just like -- as you say -- "a panda is not a true bear."

But doesn't the partial injustice of the present case nonetheless bother you?  At least just a little?

The plaintiff owes some property taxes on his residential property, and (for whatever reason) doesn't pay them.  Fair enough.  The County of Placer will -- and does -- conduct a tax sale, and sell the thing out from under you.  That's the way we enforce your obligation to pay taxes.  Doesn't bother me in the slightest.

But the value of the property is way greater than the value of the taxes.  Which, again, doesn't bother me.  But it does mean that there's a ton of excess money.  The County sells the property for $530,000.  The overdue taxes, including all penalties etc., consists of less than a tenth of that:  approximately $37,000.  Then the County inexplicably keeps another $45,300 that, as the Court of Appeal explains, "went to other charges and expenses which the County did not explain."

And, in the end, after keeping the money for nearly two full years, the County gives the plaintiff the balance of what it thinks it owes him:  $437,096.16.  But doesn't pay a penny of interest on the nearly half a million dollars of plaintiff's money that the County has held on his behalf for the 18+ months in the meantime.  (Parenthetically, the Court of Appeal doesn't mention this, but on the other side, if you are even a single day late in paying your property taxes, the County instantly charges you interest of 10% on the entire balance.  Sounds fair and equitable, right?)

The County held that half million dollars for a ton of time.  It got value for that.  It earned interest, didn't have to float bonds, etc.  It demonstrably got a benefit.  And, reciprocally, the plaintiff incurred financial harm in not getting that money earlier.  Time value of money and all.  A fairly important (and basic) concept.

Why shouldn't the County be forced to pay at least a little bit of interest?  Why, during the time it kept this money, wasn't the County at least a little bit in a fiduciary relationship with the plaintiff?

It's bad enough to take over $45,000 of the plaintiff's money for "charges and expenses which the County did not explain."  It adds insult (and injury) to injury to pile on by not paying even a single penny of interest on the nearly half million dollars of someone else's money you've kept (to your demonstrable benefit) for nearly two years.

Yes, sometimes a "trust" account isn't really indicative of having a "trust"-like relationship with another party.  But sometimes that "trust" account, alongside the facts and equities of the underlying relationship, does impose at least some obligation of trust and fidelity.  Or at least should.

And not paying even a single dollar of interest here would, to me, seem to qualify as an inequitable and unjust result.  For which we could -- but the Court of Appeal does not -- provide a remedy.

My take, anyway.  FWIW.

Denham v. City of Richmond (Cal. Ct. App. - Oct. 25, 2019)

This makes sense to me.  Times two.

The general plan of a City allows future residential development of various hillside locations.  But the residents of that City decide that this would be unattractive.  So they propose and adopt an initiative that (generally speaking) stops residential development in this area, and leaves it agricultural and (in essence) attractive.

So far so good.  The people have that right.  (Assuming it's not a taking, etc.)

Here's the problem:

The initiative's a messy one.  It's not perfectly written.  As one might expect with citizen-initiated proposals, which don't go through the same type of substantive legal review as measures adopted by the City pursuant to its usual (byzantine) planning process.

So while the initiative is clear in a the overwhelming majority of its respects, it accidentally failed to amend various other provisions of the City's general plan in which the hillsides at issue were listed as amendable to residential development.  It just forgot about (or overlooked) these.

Which in turn means that, after the adoption of the initiative, the City's laws were internally inconsistent.  One big chunk of them (added by the initiative) said you can't build houses on the hillside.  But a residual chunk of them -- which predate the initiative, but were unamended by it -- say that you can build houses on the hillside.

So what to do?

The trial court says that the internal inconsistency means that the initiative is void, so it falls.  But the Court of Appeal disagrees.  There's not much precedent precisely on point, since these sorts of things (thankfully) don't happen all the time.  But in a creative and, I think, common sense opinion, Justice Tucher writes an opinion that remands and that directs the City to resolve the inconsistency.  One way or the other.

But how can you do that?  After all, the initiative was adopted by the people.  The municipality can't amend it.  So how can the City even attempt to do what the Court of Appeal has ordered it to do -- or at least do so short of simply capitulating to the initiative and repealing the inconsistent preexisting provisions of the general plan?

Good point.  But the Court of Appeal has an answer.  It says that, if it chooses, the City might elect to submit another proposed initiative to its residents that resolves the existing inconsistency.  And if the residents vote in favor, boom, problem resolved.

Which is true.  Mind you, that sort of gives the opponents of the initiative "two bites at the apple" in opposing the restriction on hillside development; first, when the initiative was initially proposed (and ultimately adopted), and second, when this new City-sponsored initiative comes out.  So that's a little unfair.  But, truthfully, that's the fault of the people who wrote the initiative.  Write a better one next time that doesn't forget to amend other inconsistent parts of the City's plan and you won't have such a problem.  One, essentially, of your own creation.

What the Court of Appeal leaves unstated, of course, is what happens if the City proposes such a "rectifying" initiative and it fails to pass.  But the answer is nonetheless fairly clear.  At that point, the City will pretty much be compelled to repeal the inconsistent provisions of the City's pre-initiative(s) plan.  Essentially letting the initiative prevail over the inconsistency.

Which makes sense.  The people voted.  Sure, the authors of the thing screwed up a bit.  But the intent of the thing was clear.  Unless the people decide something different (by adopting a new initiative), their obvious desire to prevent hillside development should prevail.  And the City should get rid of the inconsistent provisions of its existing Code.

A sensible and equitable result.  Regardless, IMHO, of whether you're for or against the residential development of hillsides.  There's a mode of rational legal analysis that's independent of results.  And it's properly and acutely displayed here.  I suspect the Court of Appeal would have done the exact same thing if the initiative would have inconsistently opened up (rather than closed) the hillside to residential development.

And entirely properly so.

State of California v. Little Sisters of the Poor (9th Cir. - Oct. 22, 2019)

No published opinions from either the Ninth Circuit or the California appellate courts (thus far) today.  So I'll go ahead and mention another case from yesterday.  This one.

You know it's a big ticket appeal when the caption page and list of counsel and amici spans the first thirteen (single-spaced) pages of the opinion.  And big ticket it is.  As the opening paragraph of the majority opinion accurately states the issue:

"The Affordable Care Act (ACA) and the regulations implementing it require group health plans to cover contraceptive care without cost sharing. Federal agencies issued final rules exempting employers with religious and moral objections from this requirement. The district court issued a preliminary injunction barring the enforcement of the rules in several states. We have jurisdiction under 28 U.S.C. § 1292, and we affirm."

Perhaps that's not a surprising result.  Particularly -- according to some -- from the "liberal" Ninth Circuit.

But, in that regard, let me point out that the author of the majority opinion is . . . Judge Wallace.  A jurist who's about as far from a "snowflake liberal" as you can get.

So a long opinion upholding part of the ACA and striking down an attempt to roll it back.  A high-profile opinion with a ton of interest.

People v. R.C. (Cal. Ct. App. - Oct. 22, 2019)

Justice Yegan begins this opinion by saying:

"An attempt to commit armed robbery is extremely dangerous. Appellant is lucky he was not shot to death by the store clerk who resisted his attempt to commit this offense. He would not have been the first attempted robbery culprit to meet this fate."

I'll add that such would have been a particularly tragic result because the appellant (1) is a 14-year old child; (2) who attempted to rob a 7-11 with a BB gun.  Fortunately, all that happened was that appellant was arrested and placed on probation.

It's also a neat little appeal because it's one that's basically based on a law review article:  Northrop & Rosen's piece entitled “Kids Will be Kids: Time for a ‘Reasonable Child’ Standard for the Proof of Objective Mens Rea Elements.” (69 Me. L.Rev. 109 (2017)).  Appellant's counsel takes that academic argument and turns it into a concrete legal one.

But the Court of Appeal says that you can lead an appellate tribunal to water, but you can't make it drink.  The law review article says:  “Based on the goals of the juvenile system, significant advances in adolescent development research and recent Supreme Court holdings on juvenile culpability, we argue here that the juvenile code should be amended to explicitly refer to a reasonable child standard for any mens rea element that relies on a reasonable person as the measure for criminal culpability.” The Court of Appeal responds:  "No, thanks."

So there you have it.

People v. Allen (Cal. Ct. App. - Oct. 22, 2019)

Leona Allen was convicted of welfare fraud in 1993.

Leona Allen was again convicted of welfare fraud in 1997.

Leona Allen was again convicted of welfare fraud in 2000.

Plus felony perjury in 2000.

Her son in serving life in prison (presumably for murder).

She wants her convictions expunged.

She's currently receiving 100% disability benefits from the State.

The trial court is not sympathetic to her plight.  The Court of Appeal gives her only minimal relief.

In re Marriage of Ahadzadah (Cal. Ct. App. - Oct. 15, 2019)

It's sometimes simultaneously easy and hard to resolve appeals by pro se litigants.  

It's hard because their briefs are occasionally rambling, unclear, and (in places) incoherent, so it's difficult to figure out what exactly they're saying.  And you want -- and are required -- to try your best to ascertain and then analyze the legal point they (obtusely and imperfectly) make.

On the other hand, it's easy for precisely the same reason.  Because when you can't understand a brief, even after trying, you can simply affirm.  As Justice Butz does here.  She resolves the present appeal in an opinion that basically consists of only a single double-spaced page, saying:

"Appellant filed an 11-page opening brief that is difficult to understand and a short supplemental opening brief that is similarly flawed. Unfamiliar with the principles of law governing the trial court’s ruling and the limited scope of appellate review, appellant does little more in her briefs than express frustration with the trial court and the judicial process. . . . Appellants must “present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised . . . of the exact question under consideration, instead of being compelled to extricate it from the mass.” [Citation] Appellant’s opening brief, and supplemental opening brief, both fail on all these grounds. Under the circumstances, appellant has forfeited her claims of error. The judgment is affirmed."

Fair enough. 

I mention this opinion not because it establishes great law.  It definitely does not.  (Which is why it's unpublished.)  I mention it, in part, merely as an example of a type of case (and briefing) that's far from unusual in the Court of Appeal.

But, to the honest, the primary reason I mention this opinion is because I wanted to apologize.  Not for anything huge, but to apologize nonetheless.

But I'll begin with a long digression.  That's relevant in ways a reader may or may not immediately perceive, but which I'll explain at the end regardless.

My story begins way back in 1971.  That's the year still-popular President named Richard Nixon appointed a fresh-faced former Dean of Agriculture at Purdue University to be the new Secretary of Agriculture.  The name of that new cabinet member?  Earl Butz.

Now, the Secretary of Agriculture does not typically get much press.  But this guy did some pretty revolutionary stuff, and was also fairly controversial.  He massively favored corporate farms over smaller, traditional family farms.  And in 1972, the Soviet Union had a disastrous harvests, and we gave our Cold War enemy -- under Earl Butz's leadership -- massive grain sales.  Stuff like that made the news.  So you heard the guy's name on things like the evening news or on the radio, which was the media at the time, much more than you might otherwise think for someone in his position.

And then there was his personality.  Which was, let's say, unusual.  The guy could not keep his mouth shut.  And had zero filter.  I mean:  Zero.  To say that he was "inappropriate" at times is a massive understatement.  To take but one example:  at a World Food Conference in 1974, Earl Butz publicly mocked Pope Paul VI's opposition to birth control.  By -- and it still stuns me that he thought this would be just fine -- putting on a mock Italian accent and saying:  "He no playa da game, he no maka da rules."

Yeah.  That kind of guy.  In short, the kind of guy who makes the news.  A lot.

Now, in 1974, I'm an eight-year old kid living in Virginia, alongside my 7-year old brother, my 4-year old brother, and my 3-year old sister.  For a group like that -- or at least for my group of immature kids in particular -- the pantheon of humor in the universe consisted of jokes about farts and the like. So when we'd be driving with our parents in the car and a name like "Earl Butz" was read over the radio, you can imagine the resulting smirks and giggles and childlike laughter in the back seats over the mere mention of the name.  "Butz"  Hilarious!  And, to a degree, even slightly scandalous:  they are saying "Butts" on the radio.  Nothing could possibly be funnier.  Or so our pea-like brains thought at the time.

And I vividly remember those years, and Earl Butz's role in them, to this day. (Plus, his name was "Earl," and as a kid in Virginia, every "Earl" I knew at the time could accurately be characterized as a backward, Confederate-flag-waving, cousin-marrying redneck.)

And Earl Butz made the news a lot.  So lots of giggles for me and my siblings.  I remember even as a kid his ultimate downfall and when he was forced to resign.  Though, given my youth, I didn't at the time knew precisely what it was he said that ultimately forced him out.

(Parenthetically, neither did a lot of other people, including many adults.  The newspapers and radio reported that Butz had said something "patently offensive," and that it involved something about "the Blacks," but most of the media basically left it at that.  They didn't report what exactly he had said that made him resign, saying only that it was profane and racist.  Or they shorthanded it and filled in the actual words he said with other words that were close synonyms.  Several newspapers said they were not reporting the actual words he said but that readers could stop by the newspaper's main office if they wanted to read the actual quote.  In my current town, for example, the San Diego Evening Tribune did just that -- and over 3,000 readers in fact make the trek!

When you read what he actually said, you totally understand why he had to resign.  And, to be honest, it's stunning that anyone, anywhere, at any time would say (or even think) what he said; much less that this would come from someone in the Cabinet of the United States.  So skip to the next paragraph if you don't want to know the exact words of what he said.  Because here they come.  The utterly racist thing he said was . . . 'I'll tell you what the coloreds want.  It's three things: tight pussy, loose shoes, and a warm place to shit.'  Yeah.  Amazing.  And he said this right after he told a dirty joke about a dog having sex with a skunk.  Saying all this on a flight after the 1976 Republican Convention to a group that included Sonny Bono, Pat Boone, and John Dean.  Yeah, that was the mid-70s.  In a nutshell.)

Anyway, the point is, (1) the name "Earl Butz" was repeatedly in the news, and (2) it was a name that sparked much attention when it was uttered during my formative preteen years in Virginia.

Fast forward to 2019.  I've said some occasional nice things about Justice M. Kathleen Butz and her opinions in the past. And earlier this week, I discussed yet another one of her opinions.  But in the midst of that post, I accidentally called her "he".

Sorry about that.  Not a typo.  Just a total temporary brainfart.  One of my readers sent me an e-mail about it, and I (of course) went back and changed the post.  Totally my bad.

But it also made me wonder:  Why'd I make that mistake?  Sometimes things I post are just typos.  Sometimes they're things I just pound out with (in retrospect) insufficient thought.  But one this one, it was a mistake that was a weird one to make.  Because I know who Justice Butz is. And on those rare occasions when I'm talking about a particular justice who I don't know, I routinely look them up.

So why'd I make that mistake.

But then it came to me.  Earl Butz.  I honestly think that my subconscious was the one typing that sentence.  And that, in the inner recesses of my brain, when I was thinking about Justice Butz, the picture that subconsciously came to my mind was not the actual Justice Butz, but rather the Earl Butz of my formative youth.  The latter of whom was definitely a guy.

So the post reads the right way now.  And I'm sure it won't be the last one I ever make; or even the last one about gender.

But sorry about that.  Trust me:  I've thought about it a lot.  As you can probably tell.  And will try my best not to make the same mistake again.

Or at least not make it much.

Starview Property v. Lee (Cal. Ct. App. - Oct. 17, 2019)

It's a lawsuit between neighbors.  So you just know it's going to be overlitigated compared to the economic value of the dispute in question.

Perhaps even more so when, as here, the next door neighbors live in Brentwood.

Hence why Justice Bigelow begins the opinion by saying "In this acrimonious dispute between neighbors . . . ."  Yep.  I would expect nothing else.

The lawsuit also has a meaningful holding.  So it's not just important to the residents of Glenmere Way.

A long time ago, back in 1958, one neighbor gives an easement to another neighbor to use his driveway to access the property.  They agree that if the parties need to fill out any documents to confirm this easement or make it run with the land, everyone will sign them.

Fast forward to 2016.  Someone new buys one of the properties, and wants to remodel it.  He seeks permits from the City to do so.  The City says the owner's get the other neighbor's signature as well since the parking spaces for the property will be accessed via the easement.

But the other neighbor -- probably upset at the new owner's remodel -- decides to hold up the new owner.  He refuses to sign unless the new neighbor gives him indemnity, construction, releases, five thousand dollars, etc.  Nice.

The new neighbor is bummed/upset.  He ends up installing a car lift system on his new home, thus avoiding the need to get the neighbor's signature.

Then he sues the neighbor.

There's a variety of causes of action alleged in the original complaint.  And the thing gets litigated in the manner you'd think.  Massively aggressively.

Then, after over a year of litigation, likely somewhat close to trial, the plaintiff (and, particularly, their lawyer) decide to "clean things up" in the pleadings as well as to include new causes of action that they hadn't thought of (or decided to not yet file) when they filed their original complaint.

That's a somewhat common practice.  Sure, they probably should have filed the new causes of action in the first place.  But, for whatever reason, they didn't.  So they want to file them now.

But here's the problem:  Defendants use the amended complaint as an opportunity to file an anti-SLAPP motion.  Which they do 55 days after the amended complaint is filed.  Thus leading to all the advantages of such a motion:  hearing on the merits, potential fee exposure, automatic appeal and stay even if you lose the motion, etc.

Ultimately resulting in today's published opinion by the Court of Appeal.

The trial court denied the motion as untimely, reasoning that since the new causes of action all arose from the same set of facts alleged in the original complaint, the defendants should have filed the anti-SLAPP motion then (or within 60 days thereof), not a year-plus thereafter.

But the Court of Appeal reverses.

You can see the reasoning behind the trial court's decision.  Let's say you protest at a shopping mall, and the store owners sue you (reasonably or not) for trespass, which caused them damages since they had to shut down the store and lost $5000 in business.  You decide not too file an anti-SLAPP motion to get out of the suit.  Then, before trial, the store's lawyer realizes that plaintiff's conduct probably also counts as wrongful interference with prospective economic advantage, so plaintiff amends its complaint to include that new cause of action -- one that arises on the exact same set of facts that have already been asserted.  And, boom, a year in, suddenly there's an anti-SLAPP motion.  On its face, that seems silly.  It's the same lawsuit.  Just a new additional legal theory.  If you wanted to claim that your conduct was constitutionally protected, and hence that you're being SLAPPed, you should have done so when you were first sued.  A year later is too late.

Makes sense.

But so does the Court of Appeal's rejection of that theory.  Not surprisingly, the Court of Appeal relies a lot on precedent -- or at least upon its particular reading of that (not-perfectly-clear) set of authorities.  But it also relies on its own version of common sense.  Because let's say a plaintiff initially sues you for X set of facts, with Y cause of action, and that cause of action arises out of conduct protected by the anti-SLAPP statute, but you think:  "Well, shucks, I could file an anti-SLAPP motion, but you know what, Y cause of action really is true, so I'd lose."  So you don't file the motion.  But then, a year later, on the same set of facts, plaintiffs add absurd causes of action like Z and Q and EEE.  You can see why you'd now want to file your anti-SLAPP motion.  To get out of those new meritless causes of action.  New (meritless) causes of action that you couldn't have gotten out of at the beginning since, back then, they didn't even exist (i.e., weren't asserted).

Hence the Court of Appeal's rule.  When the amended complaint adds new causes of action, you can file an anti-SLAPP motion to strike those new causes of action (but not the old ones).  Even if a year has passed in the litigation.  And even if the new causes of action arise out of the exact same set of facts previously asserted in the original complaint.

So the neighbors get to go back to the trial court for Round II.  In which the trial court will now resolve the merits of the defendant's new anti-SLAPP motion.

Undoubtedly ultimately leading to Round III, when the losing party on that motion (which I suspect will be the defendants) appeals.  Likely followed thereafter by Round IV, in which the Court of Appeal decides the merits of the appeal and then remands the case for trial on the original causes of action plus whatever remains of the new causes of action  Finally resulting in a trial on the merits in Round V.

Sometime around 2023.

What a joy.

ARCO v. Central Valley Regional Water Quality Control Board (Cal. Ct. App. - Oct. 15, 2019)

Justice Butz begins this published-today opinion by saying:  "The storied history of mining in California has adverse consequences, among them the discharge of toxic residues from mining sites."  And she's not kidding.

We're litigating in this case who's responsible for the adverse environmental consequences of a mine -- at one point, the largest copper mine in California -- that was opened over a century ago, in 1909.  A long time ago.

And those consequences are severe.  "The mine has 13 miles of flooded underground workings, comprising a total void volume estimated at 543 million gallons. The mine openings and tailings on the site discharge soluble copper and acidic mine drainage into surface waters, at times eliminating aquatic life 10 miles downstream from the mine. In 1987, the Water Board installed a concrete plug at a mine opening that was a primary source of mine leakage, which has eliminated most of the direct discharge but is causing a buildup of contaminated water inside the mine that is leaching into groundwater, and the mining waste on the surface also continues to be a source of water pollution."

Yikes.

We don't do as nearly much of this type of mining these days.  Too many regulations (or, if you take a different view, just the right amount, or even too few.)  The downside is that we have less copper, and rely on other countries.  The upside is that you have less sulfuric and other acids in your water, and don't have 13 miles of flooded, empty mine shafts.

A classic policy choice.

People v. Financial Casualty & Surety Co. (Sup. Ct. App. Div. - Oct. 10, 2019)

Judge Ricciardulli gets an A+ for this opinion published today.

If one of my students wrote this in response to a final examination hypothetical, I'd find it to be absolutely perfect.  Exactly what I would be looking for.

First, it's the lock solid right answer.  When a statute says that a judge must enter an order "within 90 days after the date upon which it may first be entered" -- "it" referring a prior court order that itself had to be entered within 180 days of a specified event -- then the 90 days begins running on the next court day that was available for the prior order to be.  Which in turn means that if, as here, the prior 180-day period expired on a Saturday, a date the court was closed, then the 90-day period starts from the following Monday (assuming that Monday isn't a holiday, in which case on Tuesday).

Second, Judge Ricciardulli's opinion sets forth every single one of the relevant statutes and principles that establish that this is the right result; e.g., Section 12 of the CCP, which extends dates that end on holidays; Sections 134 and 135 that establish that courts are closed on holidays and that Saturday is a court holiday, etc.  It shows perfectly why this the right answer.

And, finally, Judge Ricciardulli does so extremely concisely and yet with the perfect amount of explanation.  No flourish.  But definite articulation of the reasons why the result is what it is.  You can do that in six (double-spaced) pages of text.  And Judge Ricciardulli does.

I wish that all my students wrote so cleanly and concisely (and accurately).  Ditto for lawyers.

So great job by the Appellate Division, particularly Judge Ricciardulli.

I was also going to say that I was impressed, albeit for very different reasons, with the counsel for the losing party (Bail Hotline Bail Bonds), John Rorabaugh.  Not because Mr. Rorabaugh won a difficult case (he lost) or wrote an outstanding brief (since I've never read it, so I don't know one way or the other).  Rather, I was impressed that Mr. Rorabaugh could apparently effectively prosecute an appeal over a forfeited bail bond in the whopping amount of . . . $5,000.  There's only $5000 at stake.  How can a lawyer write a brief in both the trial court and in the appellate division, plus oral argument, plus all the other stuff, in a manner that makes it cost effective for the client to prosecute an appeal over such an incredibly small amount (in the scheme of things)?!  For most lawyers, the cost of the briefs alone would easily be over $5,000.  So why throw more good money down the drain (even if you're right) when the bad money you might possibly recover -- and, remember, you're not even assured of prevailing on appeal anyway -- is less than the money you're spending to get it back?

If Mr. Rorabaugh's found a way to prosecute trial and appellate proceedings on a given matter for a total costs and attorney's fees of, say, $2,000, thereby arguably making the dispute (and appeal) worth it, more power to him.  Personally, no way I could write such briefs for only $2,000.  More power to him if Mr. Rorabaugh's somehow able to pound out appellate briefs (that result in published opinions, no less) for only a grand or two.  Well done, I guess.

 (It's probably more accurate to say that I, and others, could write briefs in $5,000 appeals for a grand or two, but we pretty much uniformly refuse to do so.  At least when we're looking to make money.  There are plenty of appellate briefs that I've written for the whopping charge of $0.  But those aren't in cases I'm looking to make money or recoup (in any material way) the value of my time; they're pro bono and other matters where I'm looking to correct injustice or serve a social good.  The case at issue here doesn't seem like one someone would take on pro bono, as I doubt anyone other than the parties really cares whether the $5,000 bond here gets forfeited or goes back to Bail Hotline Bail Bonds.  So, yeah,  Mr. Rorabaugh could easily do the case for a reasonable and efficient fee to the client -- $0 -- but I bet that's not what actually went down.)

People v. Winn (Cal. Ct. App. - Oct. 9, 2019)

At first glance, I thought this opinion highlighted yet another danger of being a landlord:  the risk you're going to get stabbed an killed by your tenant.  After all, the first sentence of the opinion reads:

"A jury found defendant Alexander Winn guilty of first degree murder for the stabbing death of David Derrington after Derrington had Winn and his wife evicted from their home."

Killing your landlord seems an excessive reaction to being evicted.  To say the least.

But once I read more, I discovered that this wasn't just any old landlord that the defendant killed.  The landlord was also his wife's ex-husband.  (The opinion is a little confusing in places because it talks about the defendant having killed "Darrington" -- meaning David Darrington -- even though the defendant's wife was also a Darrington:  Traci Darrington.)

You can understand why you might stab and kill your wife's ex-husband for reasons beyond those that might arise from being evicted.

So maybe the lesson here is:  Be careful if you're trying to evict your ex-wife and her current husband has -- as here -- served five prior prison terms.

Yeah.  That sounds about right.

Brown v. USA Taekwondo (Cal. Ct. App. - Oct. 8, 2019)

Today's decision by the Court of Appeal will massively increase the exposure of National Governing bodies of the USOC (U.S. Olympic Committee) in various sports.

I'm not saying that's bad or good from a normative perspective.  Just that it's the case.

There's USA Swimming for swimming, USA Water Polo for water polo, etc.  National governing bodies that (typically) govern the sport and that establish procedures for how athletes in that sport get selected (nor not selected) to participate in the Olympics as part of the U.S. team.  But more broadly, these national governing bodies typically entire control the club-level in that sport.  If your kid is on a water polo team, for example, he's almost certainly a member of USA Water Polo, because you've got to be (essentially) to participate.

Today's opinion holds that these governing bodies have "special duties" to their members so that when a coach molests a kid, the governing body itself may be liable.  That's a huge increase in liability for the organization.  You'll undoubtedly see it reflected on the bottom line; the cost of membership in these organizations -- a practical necessity for participating the sport -- will assuredly increase.

Now, arguably, so will protections against getting molested, or (potentially) otherwise abused by your coach.  At least that's the hope.

Though I wonder how effective such screening mechanisms etc. would (will) be.  Certainly they'll be at least a TINY bit effective; screening out obvious sexual offenders, heightening concern by parents and participants and increasing awareness of the subject matter, etc.

It's just worth remembering that very few things in life are free.  Including but not limited to here.

Postscript - To nonetheless end on a happy thought, and as a reminder:  Love is always free.  So spread the wealth.

Flynt v. Shimazu (9th Cir. Oct. 7, 2019)

Larry Flynt:  Dead or alive?

Alive.  And litigating this case.  Which a split opinion of the Ninth Circuit revives after being dismissed by the district court on statute of limitations grounds.

Apparently Mr. Flynt likes to purchase "card rooms" -- poker places -- and California law makes it difficult to do so in California if you also own out-of-state casinos and the like.  Mr. Flynt is suing, claiming that's unconstitutional.

I think of Larry Flynt as an old-style pornographer from a bygone era.  I didn't previously know about his shift into (or back into) gambling.

Vices may change over time.  But there's always vice.  And people willing to make money off it.

People v. Vital (Cal. Ct. App. - Oct. 3, 2019)

I get where Justice Dhanidina is coming from.  I really do.  The defendant committed a disgusting act.  He convinced a mother to engage in oral sex with her three year old son.  To say that I'm totally appalled by that is the understatement of the century.  I'd absurdly evil.  Made only worse once you read (as you learn in Justice Dhanidina's dissent) that in one of the videos of the crime, "the child begged his mother, 'Don’t touch it, don’t touch it! Don’t! Don’t touch it,' and told her 'that’s enough. Mommy, that’s enough.' [and] can be heard whimpering."  O.  M.  F.  G.

Everyone agrees that this is a huge crime.  Everyone also agrees that to be guilty of aiding and abetting this offense (oral copulation with a child 10 years old or younger), the perpetrator needs to be over 18 years old.  But the trial court instructed the jury that only the defendant needs to be over 18.  Wrong.  It's the direct perpetrator who needs to be over 18.  In this case, the mother.  So we all agree the conviction can't stand.

But what gets Justice Dhanidina's goat is the fact that the majority enters a judgement of acquittal on these counts.  Even though, to be honest, I'm fairly confident that the mother here was, indeed, over the age of 18.  If the prosecution had known that it needed to prove that the mother was over 18, I'd bet dollars to doughnuts they could easily do so.  So, if a retrial was permitted, they'd almost certainly be able to establish what's required.

But, for better or not, that's not the way things work.  You've got to introduce enough evidence at the first trial to convict.  You don't get a second shot.  That's the whole Double Jeopardy thing.  So if you make a mistake, or forget to introduce evidence, that's on you.  The defendant gets acquitted.  Even if we're pretty much (or entirely) certain, based upon facts outside the trial, that the guy's in fact guilty (e.g., that the mother here is over 18).

That's not a pretty result.  Either in the usual case or here.  And Justice Dhanidina doesn't particularly like that outcome.  (Nor do I.)

But it's the law.  Reasonably so.

To avoid that untoward result, Justice Dhanidina says that while the instructions were wrong -- hence the conviction must be reversed -- but there was sufficient evidence of the mother's age.  She had at least one child, was described by witnesses as an "older" woman who was an "adult," and told the defendant that "18" was the minimum age of anyone she'd have sexual relations with.

I get it.

But the thing is, while I'm looking at the exact same evidence as Justice Dhanidina, and on that basis, am fairly confident that mother is, in fact, over 18, I couldn't say that beyond a reasonable doubt.  We have a video of the incident, but 21 looks a lot like 18 which looks a lot like 17.  Maybe the mother is 17 and maybe she's described as an "older" adult in comparison to the three year old.  We just can't be totally sure.

And that's what's required.  If this was the only evidence adduced at trial -- say, at a retrial -- and the prosecution didn't introduce the mother's driver's license, birth certificate, express testimony as to her age, etc., I'd have zero doubt that it was insufficient.  Even though I'd think, as I do here, that she's indeed probably 18 or more.

You gotta follow the rules.  Even though I'm not happy -- at all -- with the result, I'd be compelled to do the same thing as the majority.  The prosecution thought it had to prove X, but it actually had to prove Y, and even though it probably could have established Y with ease, it didn't do so beyond a reasonable doubt.  Which means the evidence is insufficient and the defendant entitled to an acquittal.

Even for something as disgusting as this.

P.S. - The mother got a long sentence in prison as well.  Just so you know.

People v. Tejeda (Cal. Ct. App. - Oct. 2, 2019)

"I'll confess to the murder, but only if you give me a burger, fries, burrito and a soda."  This, by the way, was better (or at least more favorable to the prosecution) than the defendant's previous offer, which was to confess to various unsolved crimes in return for "a segregated cell with a television, $200 in his inmate trust account, a double bacon cheeseburger, strawberry milkshake, and chili pork burrito, stamped envelopes, legal pads, pencils, media contacts, and an exclusive interview."

What's the deal with the "media contacts" part of that earlier request?  Glad you asked.  You see, Mr. Tejada insists that he's the victim of a horrible mind control experiment.  And it wants the world to know about it.

Indeed, they finally get him to confess by having him write down his confession as part of a "press release."  So no soda.  Mr. Tejada wrote: "It must be understood that I am 100% the subject of a United States government mind control experiment project that is on-going." Which is in turn why he committed the murder.  As Justice Dato explains: "'Suggestional thoughts' were inserted into his brain, hypnotizing him and causing him to pull the trigger."

And don't think this was an isolated, rogue program.  Not at all.  Who's fault was it?  I think you know.

Obama's.

According to Mr. Tejada:  "President Barack Obama was "fully aware" of the project."  And all that Mr. Tejeda wanted was for "Obama to admit to his face, 'Ay bro, you're a project.'"

Seems a reasonable request.  If true.

Mr. Tejada gets declared incompetent several times, but ultimately is declared competent.  So goes to trial.  At which point, against his lawyer's advice (needless to say), he testified that (1) yeah, he was the one who committed the robberies and murder, (2) but that's only because his body had been controlled by "the project,"; and (3) "with the money he stole, he thought he might buy some cigarettes and catch a plane to Langley to 'get to the bottom of this mind control project.'"

Didn't quite work out that way, of course.  He was convicted.  But, perhaps not surprisingly, the Court of Appeal holds that the trial court should have conducted another competency hearing.  Mr. Tejada can be retried if he's currently competent.  But good luck with that.

O.G. v. Superior Court (Cal. Ct. App. - Sept. 30, 2019)

I defy you to find a Court of Appeal opinion that -- as here -- disagrees with the unanimous view of multiple other panels in the Court of Appeal, in a high-profile dispute, in an opinion that itself is only six (double-spaced) pages long.

Wow.  That's short.

Not that Justice Yegan needs to do more.  He doesn't.  There are dissents in those other Court of Appeal decisions.  And he things those dissents are right, for the reasons they express.  It doesn't take a huge number of pages to say so.  No need to gild the lily.

Plus, there's zero doubt that the California Supreme Court is going to take up this case.  Justice Yegan strikes down Senate Bill 1391 (which bars prosecutors from asking to try minors as adults in various criminal cases) as fatally inconsistent with Proposition 57 (which allows minor to be tried as adults in only limited settings).  That's an important and recurring issue, and potentially adds (or subtracts) a ton of time for various criminal defendants.  Given the split in the Court of Appeal, it's pretty much certain that the California Supreme Court will step in.

So why write something incredibly long when, in short order, the only thing that readers are going to care about anyway is the controlling decision from the Supreme Court.

Short opinion.  Super important.  Super temporary.

Salazar v. McDonald's Corp. (9th Cir. - Oct. 1, 2019)

I feel gently compelled to talk about today's opinion from the Ninth Circuit.  Not because it's the most important opinion in the universe (which it isn't).  Nor because it's the first opinion published by the Ninth Circuit in October (which it is).

Rather, I mention it because it's the first opinion published by the Ninth Circuit in a while. No opinions published last Wednesday.  Or last Thursday.  Or Friday.  Or Saturday or Sunday (obviously).  Or Monday.  Today, finally, after a week-long break, we get a single published opinion.

Better than nothing, I guess.

Meanwhile, in the last three business days alone, the Ninth Circuit has issued 108 unpublished opinions.  Which tells you a lot about how the majority of Ninth Circuit appeals get adjudicated.

Today's opinion is at least important for anyone who wore a McDonald's uniform in California in the last several years.  The Ninth Circuit upholds the entry of summary judgment in favor of McDonald's in a wage and hour class action, holding that McDonald's itself (as opposed to the relevant franchise) isn't the "employer" of the employees.  Chief Judge Thomas dissents, but since the majority opinion is by Judge Graber (joined by Judge Kleinfeld), I don't think you're going to get en banc review, nor will the Supreme Court be interested.  So that's the practical end of this case.  Notwithstanding all the amici interest in this case (on both sides).