Monday, March 30, 2020

In re Marriage of Everard (Cal. Ct. App. - March 30, 2020)

It's a case from San Diego.  The parties are married, and have two kids, but it's not a good marriage.  The parties get divorced, and based on various events, the trial court enters mutual restraining orders against the spouses.  The father doesn't like that, and files an appeal.  The mother doesn't file a brief in response, but that doesn't obviate the Court of Appeal's responsibility to resolve the merits.

The Court of Appeal affirms, in an opinion that seems exactly right.  Father said that the trial court relied on a police report to find mutual abuse, but that's not really true -- as Justice Benke says, the trial court really relied on the police officer's testimony, the testimony of the wife, etc.  Yes, the trial court was required to make "detailed findings" before issuing a mutual restraining order, and that really just means (according to the panel) "findings" sufficient to permit review.  But the findings here satisfied that burden.  Hence affirmed.

All of which makes sense.

The sad part, to me, is that now there's this appeal sitting out there.  Yes, we've used initials for the names of the kids.  But the parents' names are not especially common ones.  So it's easy to go ahead and look up the Facebook pages of the mother and father.  In which you'll see tons of smiling and proud pictures of the two kids -- which is great.  But now, out there, is a published opinion that has intimate details of their parents' marriage, with a focus on their respective events of domestic violence.  Maybe there's a little young to read about that now (maybe), but eventually, yeah, they'll see it.

Of course, they also lived through it, so maybe seeing it in print pales in comparison.  (One quote from the opinion:  "On December 17 during a "FaceTime" call with minors, they started screaming, "Mommy stop! Why mommy? What are you doing mommy? You're going to die, mommy, STOP STOP STOP"; and that C. stated Valerie had a "steak knife held to her own arm" and was "threatening to cut off the tattoo of [Kyle's] name."")  But still.  Sort of sad that there's something out there like this to remind them of the experience.

Friday, March 27, 2020

May v. Ryan (9th Cir. - March 27, 2020)

At a criminal trial, the jury says that it's hopelessly deadlocked, and after some brief back-and-forth, the trial judge orders a mistrial and discharges the jury.  A couple minutes later, the jury says "Wait.  I think we might be able to reach a verdict after all.  Can we keep deliberating?"

You're the defense attorney.  Should you (1) agree to allow redeliberation, or (2) let the jury hang?

(It's a child molestation case, if that matters.)

To be clear, I'm asking for a strategic choice.  On balance, if you've got a split jury (of unknown composition), are you better off having this jury attempt to reach a verdict, or are you better off with a hung jury and, presumably, a new trial with a different jury.

Defense lawyers out there:  Which one would you want?

Prosecutors:  Ditto for you.  Which option enhances the overall probability that the defendant will be found guilty?

That's the exact issue in this case.  Albeit in the guise of a habeas opinion, with the relevant deference attached to the state court judgment.

Because that's exactly what transpired here.  The defense attorney confronted with this issue took 20 to 30 seconds to think about the issue and consult with his client, and in that split-second decision, elected to take a chance with the present jury.  Which then promptly convicted his client on nearly all counts, resulting in essentially a life sentence.

Was that the right call or not?  The majority says it might well have been right.  The dissent says it was definitely wrong.

I'm positive that both the majority and the dissent are correct in part.  The dissent's definitely right that it's a classic tenet of criminal defense work that you take a hung jury when you can get it.  A plethora of smart treatises so state.  And I'm quite positive that states the prevailing view, and one that's informed by lives in the trenches.  So score those points for the dissent.

But I'm also certain that the majority's right that it's not always the right call to go with the hung jury, and that at least in some cases, it might be right to prefer further deliberation.  After all, you've got at least one member of the currently-deadlocked jury in favor of acquittal.  You can't be sure that you'll be able to say the same for your next jury.  Maybe it makes sense to take your shot here, especially if your "gut" tells you this jury might be predisposed to acquit (e.g., that the split here in 10-2 in favor of acquittal).

All that's true.  Which is just to say what's true vis-a-vis most factual propositions in the real world:  They're shades of gray.  There are very few truths that are always true in all situations.

But that begs the question:  What's the typically right call.  If, as here, you don't have any special information that differentiates your deadlocked jury from the usual deadlocked jury, what's the right call?

You've got some academic and empirical scholarship on this point, actually.  Discussed by both the majority and the dissent.  But the analysis of this scholarship is definitely superficial.

The dissent says (rightly) that this research demonstrates that most hung juries are tilted heavily in favor of conviction.  This fact, the dissent argues, makes sticking with a hung jury generally a much preferred approach for the defendant, since if the already-conviction-prone jury redeliberates, it's very likely that they'll vote to convict -- e.g., move from 10-2 in favor of conviction to 12-0 in favor of conviction -- then radically shift and vote 12-0 to acquit.

I'm confident that's true.  It's definitely true that most hung juries are hung heavily in favor of conviction.  And I'm fairly certain that, as a result, if further deliberations in fact result in a verdict, most likely, that verdict's going to be a guilty verdict.

But the majority has a response.  One that's also largely right.  Yes, it's true, this deadlocked jury is (statistically) likely to be in favor of conviction, and hence if it successfully deliberates further is (statistically) likely to convict.  But it's also true that, statistically, a huge majority of juries vote to convict anyway.  So, the majority argues, if 98 percent (or whatever) of juries are going to convict anyway -- presumably including your new jury on a retrial -- the fact that 90 percent (or whatever) of currently deadlocked juries will vote to convict doesn't matter.  You should still take your shot with the present jury, because a 90 percent chance to conviction is better than a 98 percent chance.

Again, at some level, that's statistically true as well.  But it also compares apples to oranges.

The relevant question is not, as the majority puts it, what a new jury in a typical case is statistically likely to do.  That's the apple.  The actually relevant question is instead what a new jury in a case in which we already know that some actual jurors in a prior case wanted to acquit would do.  Cases in which, in a prior trial, the jury was deadlocked are, as a group, unquestionably weaker cases.  Yes, most cases result in convictions.  But the group we're talking about here -- the oranges -- are not your run-of-the-mill cases in which the evidence is overwhelming and guilt essentially preordained, but are instead cases (like the one here) where the evidence for the prosecution is much weaker and has a variety of holes (e.g., as here, come exclusively from child witnesses whose statements are often internally contradictory).  What's the conviction rate in those types of cases?  Cases in which, in a prior trial, the jury was deadlocked?

That's the relevant data point.  One that neither the majority nor dissent isolates.  Yes, we may be able to say that 10-2 guilt cases typically result (e.g., 90% of the time) in a guilty verdict in the event of a successful redeliberation.  But if cases that previously hung 10-2 result in a conviction only 80% of the time, then the old saw about taking a hung jury whenever you can makes sense.  You're better off with a new jury -- notwithstanding everything the majority says here about the prosecution learning from its prior mistakes, the defendant's strategy at the prior trial, etc. -- because that gives you the best chance at an acquittal.

There are some ancillary points as well that the dissent rightly makes that argue for accepting the hung jury wholly apart from the statistical likelihood of ultimate acquittal.  For one thing, the dissent notes that a retrial isn't even necessarily certain.  True enough.  Now, here, I think there was little doubt that the prosecution would have retried the guy in the even the jury hung.  But maybe not if the vote was something like 10-2 to acquit.  (Which may demonstrate that even if you've got some reason to believe that the current jury might be in your favor, you might still elect to go with the hung jury.)

Even more persuasive, in my view, is the dissent's point that the defendant here (like many, but not all, defendants) was out on bail.  At the very least, taking the hung jury gives him another six months or so of freedom while they empanel and try to the new jury.  That you know for sure.  Yeah, maybe it's true that, statistically, the guy's likely to be convicted anyway and sent to prison for life.  But even if you know that for sure, okay, get your six months.  Maybe you find new evidence.  Maybe you die of natural causes and the whole thing is moot.  Maybe, yeah, you end up going to prison, but at least you had those six months of freedom that you wouldn't have otherwise had.  Are those six months totally awesome ones, given that you've got a criminal trial hanging over your head?  Probably not, honestly.  But those six months of encumbered freedom are better than six months in prison.  That I can promise.  I'll take that trade every single time.

So it's an interesting issue about what the right "rule" actually is:  Take the hung jury or not?  It's one that I think has an answer in a typical case.  But that answer isn't particularly spelled out by the type of analysis in today's opinion.

Which is too bad.  'Cause I'd like to know the answer.  Even though I suspect it's the one that the dissent rightly points out is the one adopted by the relevant practitioners:  Take the hung jury.

Thursday, March 26, 2020

J.M. v. W.T. (Cal. Ct. App. - March 26, 2020)

You've heard the saying:  "Justice delayed is justice denied."  That principle probably applies multiple different ways in this case.

It's not a complicated issue.  Which is why the opinion only requires a half-dozen pages.

Plaintiff seeks a temporary restraining order against his former dating partner.  The request is filed on January 8, 2019, and he gets his TRO (which is unopposed because you don't even have to serve the other side with these things).  The ultimate hearing then gets scheduled for January 29, 2019.  So far, so good.

Come hearing time, two things happen.  First, the judge isn't psyched.  She notices that the papers say that the last domestic violence (it was a dating situation) was back in March 2018.  (The violence at issue included calling the plaintiff a "f**king c**t" over the phone, biting him during sex, punching him and the steering wheel of a car, and screaming at the plaintiff.)  And here it was January 2019, with (presumably) nothing since then, and probably the dating long over.  So she says:  "This one is dismissed with prejudice. The most recent incident happened ten months ago, so it is dismissed with prejudice.”

Second, right before the hearing, on January 24, 2019, plaintiff filed a request to continue the DVPA hearing using Judicial Council Form DV-115, checking the boxes that said he needed additional time to serve the papers (apparently he still hadn't served the defendant) and also due to his medical issues.  The judge wasn't particularly psyched about that either, saying:  "The requesting party did not appear at the January 29, 2019[,] hearing. This request was received by the [c]ourt on January 24, 2019. Request to continue a hearing prior to the scheduled hearing date must be submitted to Department 2C by way of an Ex-Parte Application.”

Plaintiff then files an appeal, and represents himself (as, apparently, he did below).  He says that the court should have granted a continuance.  And the Court of Appeal agrees, for reasons that are clear in the (concise) opinion.  The statute at issue says:  “Either party may request a continuance of the hearing [under the DVPA], which the court shall grant on a showing of good cause. The request may be made in writing before or at the hearing or orally at the hearing."  Since you're allowed to make those requires "before or at the hearing," the Court of Appeal says you can't deny them just because they're made (1) five days before the hearing, and (2) don't serve the other side.  Not required.  So the Court of Appeal reverses and orders the trial court to schedule a new hearing.

Fair enough.

But notice that it's now 2020.  Big gaps in time aren't necessarily dispositive of whether you get a protective order.  (The statute says:  "The length of time since the most recent act of abuse is not, by itself, determinative.")  But they're definitely relevant.  The trial judge here thought that the gap of  10 months (from March 2018 to January 2019) was too long in this particular context.  You've got to think that, at this point, a gap that's two or three times as long -- from March 2018 to March 2020, and that's even ignoring the time for the remittitur, a new hearing on remand, etc. -- is going to look even worse.

I understand that the Court of Appeal tells the trial court to schedule a new hearing "if plaintiff still desires a protective order."  But given that he took the appeal, he probably does, right?

So, yes, the trial court probably should have granted a continuance, and so the Court of Appeal reverses.  And does so -- rightly, I think -- in a published opinion, so future courts don't make similar mistakes.

But on the merits, at this point, I suspect it may be procedural ado about nothing.  Because barring anything new, if a trial judge was unwilling to grant a protective order in 2019 given the passage of time, the additional passage of time since then makes the granting of a protective order now even less likely.

Hence the start of this post about justice delayed.  In addition to the delay in seeking justice in the first place.  As I said:  On all sides.

Wednesday, March 25, 2020

Walker v. Life Ins. Co. (9th Cir. - March 23, 2020)

Judge Tallman says at the end of this 25-page opinion:

"Plaintiffs . . . gambled their ability to appeal on the possibility that the district court would materially change its original certification decision on reconsideration. The subsequent reconsideration order maintained the status quo, and so it is not appealable. Plaintiffs lost their bet. Rule 23(f) cannot hedge it."

I appreciate that sentiment.  And agree with it in a plethora of cases.  When people make strategic decisions, that's their call.  They live or die with the resulting consequences.  No whining when the bet doesn't work out.

But, in truth, and with respect, I don't think that's what actually happened here.

The plaintiffs filed a motion to certify their class action, and proposed two different versions of the class definition; one broad, one narrow.  The district court certified the class with the narrower class definition.

So a win.  But only a partial win.

Now, normally, both sides then have 14 days to seek to appeal pursuant to Rule 23(f).  Though that deadline can be extended by a timely (i.e., within-the-14-days) motion for reconsideration.

Defendants went ahead and just filed their request to appeal (on the 14th day).  Plaintiffs, by contrast, filed a motion for reconsideration (again, on the 14th day).  All this is on August 14.

So far, so good.  Both sides did what they were required to do in order to seek relief from the Ninth Circuit.

But when plaintiffs filed their motion, they neglected to meet and confer in advance, which the local district court rules required.  So on September 10, the district court denied their motion, without prejudice, on this basis.

So the plaintiffs did what you might fully expect them to do:  they promptly met and conferred with the other side and then immediately (on September 18) refiled the same motion.  Which ultimately was denied (on October 22), and then plaintiffs promptly (14 days later) asked permission to appeal after that denial.  After all, plaintiffs timely filed a motion for reconsideration, which tolled the deadline, and now, once it's denied, they ask permission to appeal.  Right?

Technically, no.  That's wrong.  As Judge Tallman and the rest of the panel rightly conclude.

Yes, you filed a motion for reconsideration.  But that one -- the one filed within the 14 days (on August 14) -- was denied.  Denied on September 10.  So you had 14 days from then to file your request for permission to appeal.

Yes, I know, the district court denied it without prejudice, for a procedural technicality.  But that's still a denial.  The fact that it's without prejudice doesn't matter, if only because the district court doesn't get to extend statutory deadlines in the Court of Appeals.  So you've got to file 14 days from then.  Even though, yes, I can well see why you might think that makes very little sense.  Why require a party to immediately file their request for an appeal when (1) a motion for reconsideration tolls the deadline, and (2) the district court might still elect to grant the motion and hence moot the appeal?

I know.  But, as the Ninth Circuit holds, that's nonetheless the way the rules technically work.  You have to file your appeal early.  Even before your "second" motion for reconsideration (which is just the refiling of your first, this time after a meet and confer) is heard.  Perhaps silly, but that's what the hypertechnical rules require.

Since the plaintiff didn't do it that way, their appeal gets dismissed.  They had 14 days from the first (procedural) denial on September 10 to ask to appeal, but since they only filed 14 days after the second (substantive) denial on October 22, the request -- and hence the appeal -- is untimely.  Tough luck.

Judge Tallman says that the above facts demonstrate that "Plaintiffs . . . gambled their ability to appeal on the possibility that the district court would materially change its original certification decision on reconsideration."  And I see why he might think that.  Yes, if the district court had decided (on the second, renewed, motion for reconsideration) to change its certification order, then the 14 days would indeed run from that event.  So it was at least possible that a plaintiff could make such a timeliness gamble.  (Though, in truth, that'd make little sense, since if the district court changed its order, that's what plaintiffs wanted, so it would moot their appeal.  It would make little sense to "gamble" the timing of your appellate rights on the hopes that you'd get an order that would moot your appeal entirely if it were granted.)

But I feel very confident that that's not what, in fact, went down here.  Plaintiffs and their counsel almost certainly did not think "Yeah, we could appeal now, but you know what; I'm going to bet that we'll win our reconsideration order, and after that, then we'll file our appeal."  For one thing, it's unlikely they thought their reconsideration motion had a huge chance of success (since such motions almost invariably get denied); for another, such a strategy for a mooted appeal would make no sense, and finally, because there'd be little reason to make such a gamble when you could file permission to appeal in the first place -- delay doesn't really get you anything.

No, what I'm instead fairly confident actually transpired was just that plaintiffs and their counsel thought that what they were doing was the way the rules worked.  They weren't making a bet on their motion for reconsideration succeeding.  They just thought "Hey, the district court denied our motion without prejudice, for a procedural mistake, so we'll just correct that tiny little error forthwith and then appeal once it gets denied.  That's the way the rules work."

Now, look:  They were wrong.  That's not, in fact, the way the rules work.  And just like you're typically stuck (as Judge Tallman notes) with your bad bets, so too are you typically stuck with your bad reading of a statute.  At least as one as hypertechnical and strict as the one here.

So I don't disagree with the outcome.  I just think that it's more accurate (and -- perhaps -- less pejorative) to say that the plaintiffs are stuck with their "decision" not to appeal after the first denial.  It wasn't a bet.  It was, much more likely, simply a mistake.  Not a strategic mistake.  Just a regular old mistake.  (And I get that perhaps many lawyers would think it more pejorative to hoist them on the consequences of a mistake than on a strategic election.)

Reading and interpreting the rules is tough.  Even for fancy lawyers in big-ticket cases.

Sometimes people make bad choices.  Strategic or otherwise.  This is one of those events.

(Shed no tears for the plaintiffs and their counsel, however.  Remember that they still got part of their class certified.  And with respect to that issue, the Ninth Circuit affirms, so that's a win.  Plaintiffs just get their cross-appeal dismissed, so the class stays limited.)

Tuesday, March 24, 2020

Thresona Multimedia v. Burbank H.S. Vocal Music Ass'n (9th Cir. - March 24, 2020)

It probably behooves a potential plaintiff to take a step back before suing someone and think:  "How might this look to an outsider."  Lest the result be something like this.

"Tresóna did more than simply pursue an aggressive litigation strategy. It sued a public school teacher, a not-for-profit Boosters Club, and parent volunteers. Both during litigation, and in pre-litigation communications with Carroll, Tresóna repeatedly mischaracterized its copyright interests in the songs at issue by claiming to be the sole entity empowered to issue licenses. In light of Tresóna’s minimal and belatedly produced evidence supporting its claimed chain-of-title, these communications appear specifically designed to frighten Carroll and the Boosters Club into purchasing licenses from Tresóna, rather than to legitimately enforce its limited licensing interests or those of the true copyright owners. Indeed, Tresóna’s initial complaint alleged exclusive rights in 79 songs used by the Burbank show choirs. And it was not until after briefing on Carroll’s summary judgment motion was complete that Tresóna belatedly produced any evidence of its chain of title, which demonstrated its claimed interests were almost entirely unsubstantiated. None of these actions furthers the purposes of the Copyright Act. SOFA Entm’t, 709 F.3d at 1280–81.

Courts have a legitimate interest in deterring the type of litigation conduct in which Tresóna engaged, and in compensating those who have been harmed by such conduct. . . . As much of this litigation was avoidable from the beginning based on settled law when Tresóna filed its complaint, awarding attorneys’ fees to Defendants appropriately serves the interest in deterrence."

To say that the Ninth Circuit was less than sympathetic to the plaintiff here is an understatement.

In re D.S. (Cal. Ct. App. - March 24, 2020)

A little dependency case from down here in San Diego:

"12-year-old D.S [] was living with his paternal aunt (Aunt), later determined to be his presumed mother. The Agency alleged that D.S.'s father was deceased, Mother had previously caused the death of another minor, and Aunt was no longer able to care for D.S. As discussed in the detention report, Mother's parental rights were terminated after she was charged and convicted of killing D.S.'s brother. D.S. had been placed in the care of his father, who subsequently died suddenly in March 2018. Aunt assumed care for D.S., but reported to the Agency that she could not currently care for D.S. due to her own health issues."

Yikes.

Monday, March 23, 2020

People v. Mitchell (Cal. Ct. App. - March 23, 2020)

I generally like learning new things.  But I was horrified today to learn a new term.  No thanks at all go out to Justice Fields and this opinion from this afternoon.

The new term is "degloved" -- a word that I had never heard until today.  As in this sentence from the opinion, a case involving child abuse:

"John Doe 1’s penis had been degloved . . . ."

Lest there be any doubt, Justice Fields drops a footnote right after the term to explain what it means:

"The treating physician described 'degloving' as like skinning the body part and specifically noted that with John Doe 1, it was possible to simply lift the loose skin, open it like a book and view the erectile chambers of his penis, spermatic cord, and blood vessels."

Oh my.  Oh my, oh my, oh my.

I'm not even sure how that can happen.  I'm not even sure how that happens even after reading the opinion.  What can you possibly do to someone to inflict that sort of injury?

Sure, it's a case where the defendant gets convicted of torture.  It's a five- or six-year old child, after all.  So you can imagine a demonic, movie-type sadist with all sorts of implements and the like doing this to a child, at least in theory.  Go ahead and picture the person and the relevant tools.

Did you picture a 70-year old grandmother?  Because that's who the defendant is in this case.  (I'm not actually sure of her exact age; the opinion merely refers to her "advanced age and poor health" and the fact that she's receiving social security and well as retirement benefits.  Still, she's old.)

Two brief additional thoughts.  First, the testimony of the children here is not exactly helpful.  It's certainly incriminating.  But, as I said, for the life of me, I'm not sure how this injury happens.  The child at one point in an interview referred to "a tool that he described as something that 'closed' and 'opened'; was kept in a drawer; and used on green trees."  But I still don't know what that could be.  And then, at trial, the child denies that there was a tool, and then says he can't remember.  So I'm left totally in the dark as to how the underlying events actually transpired.

Second, relatedly, I wanted more details, so I tried to find press reports about the whole thing.  But I can't find any.  At all.  Not by the defendant's name.  Not by the injuries.  Nothing.  Which is unusual, particularly given that the case went to trial and involves highly disturbing facts.  Weird.

Anyway.  There are a lot of things to fear these days.  We can now officially add "degloving" to that list.

People v. Bullard (Cal. Supreme Ct. - March 23, 2020)

The trial court and the Court of Appeal thought the case should come out one way.  The California Supreme Court unanimously reversed.

I particularly liked the last several pages of Justice Kruger's opinion.  They independently explain the issue well, as well as why the case should come out the way it does:

"The narrow interpretation of Penal Code section 490.2 as applied to section 10851 convictions would mean that a person who intends only to take the vehicle temporarily may be punished as a felon, while a person who also intends to take the vehicle permanently is subject only to misdemeanor punishment. The utter illogic of this result effectively eliminates the narrow interpretation of Penal Code section 490.2 as a possible construction. As in other instances when a statute “blindly and literally applied” would lead to “obvious injustice and a perversion of the legislative purpose” (People v. Oliver (1961) 55 Cal.2d 761, 766), we must instead choose a reasonable interpretation that avoids absurd consequences that could not possibly have been intended.  [Cites] . . . .

When voters enacted Penal Code section 490.2, they could not possibly have intended thereby to split the atom of the section 10851 vehicle taking into two separate crimes—permanent taking and the included offense of temporary taking—with the latter punished more harshly than the former. . . . If anything, to exclude a section 10851 conviction based on the taking of a low-value vehicle because the defendant’s intent was not culpable enough would contravene Proposition 47’s overarching purpose of reducing the punishment for low-level nonviolent property crimes. More to the point, we see no plausible reason why any reasonable voter or legislator might have intended such a result. . . .

The Attorney General argues that even though a person who violates section 10851 by committing what he calls a “pure taking” of a vehicle is eligible for Proposition 47 relief, a person who actually drives the vehicle at any point is not. The Attorney General illustrates the point with an example from the now-defunct MTV series Punk’d, in which a prankster towed the celebrity victim’s car as part of an “elaborate hoax.” As the Attorney General sees it, the MTV prankster who has arranged for towing services has committed a misdemeanor (assuming the car is of the requisite low value); for virtually anyone else, the crime remains punishable as a felony.

The Attorney General’s theory appears to rest on the premise that for purposes of section 10851, taking and driving a vehicle are mutually exclusive categories of conduct. This manner of parsing the section 10851 offense is contrary to both experience—which tells us that cars are commonly taken by driving them away—and our unsurprising observation in Page that “vehicle theft often involves driving the vehicle.” (Page, supra, 3 Cal.5th at p. 1188.) . . . . The distinction between taking a vehicle by driving it away and taking a vehicle by other means is not one that has ever had any significance under section 10851, and the Attorney General offers no sound basis for believing Proposition 47 was intended to distinguish among vehicle takings on this basis.

Our holding today does not mean that Proposition 47, properly read, necessarily covers every offense that one might believe to be less serious than petty theft or simple drug possession. We are not at liberty to rewrite the initiative to enact our own view of provisions that might have improved it, or that would have better vindicated its stated purpose of reducing punishment for low-level crimes, and we do not do so here. (See People v. Martinez (2018) 4 Cal.5th 647, 653–655.) Nor should our holding be taken to suggest that the term “theft,” in general, carries anything other than its settled meaning.

Our holding today is narrow, and specific to the interaction between Proposition 47 and the section 10851 offense. We hold only that to interpret Proposition 47 to split the section 10851 taking offense into two offenses— misdemeanor taking with intent to permanently deprive the owner of the vehicle, and felony taking with intent to do so only temporarily—is so patently illogical that we cannot imagine any plausible reason why voters might have intended that result. The elements of taking an automobile without the intent to permanently deprive the owner of its possession are included in taking with such intent. . . .

It certainly would have made our task easier had voters expressly instructed that all vehicle takings under section 10851 are to be treated as equivalent to vehicle theft for purposes of Proposition 47’s theft-reduction provision. But Proposition 47 does not speak in this degree of granular detail, so we must discern the voters’ intent given the other tools at hand. Confronted with comparable circumstances, we have not hesitated “to find by implication provisions in a statute which are not within the scope of the statutory language taken literally.” (Bruce v. Gregory, supra, 65 Cal.2d at p. 674; see also In re Michele D. (2002) 29 Cal.4th 600, 606 [that legislators “may not have considered every factual permutation” for statute’s application does not mean application to particular conduct is beyond legislative intent].) It is, after all, “our role to make sense rather than nonsense out of the corpus juris.” (West Virginia Univ. Hospitals, Inc. v. Casey (1991) 499 U.S. 83, 101.) The narrow interpretation of Penal Code section 490.2, as both sides agree, is one that would make nonsense of the law. We therefore agree with the parties that it is an interpretation we must reject."

Well said.






Thursday, March 19, 2020

Herrera v. Zumiez, Inc. (9th Cir. - March 19, 2020)

I know there are bigger issues in the world.  Much bigger.  Massively bigger.  But amongst the ways in which the world has changed fairly recently is that, at least as I perceive it, we're starting to get more days like today in the appellate world.  To wit:  One published opinion, total, from the entire California state and federal judiciary.

Which is not massively surprising.  There's a slowdown in most sectors of work (excepting areas like medicine etc.).  So why should the judiciary be any different?

And it's not like today is horrible.  The one published opinion is interesting.  It's a tiny little fight between one judge who wants the opinion -- which involves an unsettled state law issue -- either to be unpublished (and hence nonprecedential) or to have the federal courts certify the question this time and/or the next time it comes up.  With the unspoken but likely true underlying motivation in part that he doesn't like the (left-wing) way the state court has resolved the matter.  Whereas the majority on the panel wants the opinion published, since it comes up a lot, and doesn't feel like it makes sense to certify the matter since you've got a clear answer from the state courts at present so why not resolve the case now.  With the unspoken but likely true underlying motivation in part that they are just fine with the (left-wing) way the state court has resolved the matter.

Now, maybe I'm reading between the lines too much, or feel that judges are often more results-oriented than the normally are.  And, on the merits, the procedural fight about when you should certify and when you shouldn't is something that warms the hearts of every former law student who enjoyed their classes on Civil Procedure and Federal Courts (e.g., me).  Neat academic stuff.

So (1) beggars can't choosers, and (2) today's tithing is actually pretty darn good in any event.

Meanwhile, we'll see what the future holds.  In this milieu as well as many others.

Wednesday, March 18, 2020

People v. Cruz (Cal. Ct. App. - March 18, 2020)

Wow.  That's a lot of stalking.  Dangerous, scary stalking.

I was wondering why he got six years in prison.  After reading the facts, I understand why.

The way the facts begin in the opinion is something you see occasionally:

"Defendant and Jane dated for several months, beginning in 2015. Several times, either Jane or defendant broke off their relationship, but then the two of them would reconcile. Between August and October 2015, Jane obtained three restraining orders against defendant, and despite these orders, Jane and defendant reunited and broke up several more times between December 2015 and April 18, 2016."

Not good.  Tip:  A good indication that your relationship is not, and will not, work -- ever -- is that you have to get a restraining order against the other person.

Tuesday, March 17, 2020

Brown v. Stored Value Cards (9th Cir. - March 16, 2020)

Glad to read this one.

I knew that when you got arrested, they took all your possessions and kept 'em in storage.  And, from watching the movies, I assumed that once you were released, you got them all back (excepting only contraband and the like).

Apparently not.

I now learn that some jurisdictions (1) take your cash, but then (2) upon your release, only give you back a crap "prepaid card" for the value of your cash, and one that rapidly (e.g., often, within 5 days) starts charging you all the type of sleazy fees you would expect from a slimy retailer.  Sure, if you were totally on top of things, you could avoid all those fees by quickly finding a participating bank, driving there, walking up to the teller (not the ATM), and waiting to take out your cash.  But the guys who sell these cards to municipalities know full well that you won't.  If only because you're busy with that whole "criminal arrest" thing.  That's how they make their money.

Plaintiffs say it's a taking, as well as violates a federal law designed to regulate such abusive prepaid cards.  The district court dismissed the lawsuit.  The Ninth Circuit thankfully reverses and remands.

I'm sure it's a little bit of a hassle to hand over the cash you seized from someone after their arrest.  All those little brown envelopes and recordkeeping and such.  But turning this function over to an industry that's notoriously abusive -- and knowing full well you're helping to take away a good chunk of this vulnerable population's cash in "fees" -- is not an acceptable solution.

Just give them their money back.

Monday, March 16, 2020

M.G. v. Superior Court (Cal. Ct. App. - March 16, 2020)

I appreciate this opinion today from the Court of Appeal.  Justice O'Leary is exactly right to tell the trial courts that it's not okay -- seriously, not okay -- to delay18-month review hearings in dependency cases until 30 months or so.  Yes, we know you're totally busy and overworked.  Still.  Gotta meet the deadlines in these things.  It's kids.  It's families.  It's important.

Similarly, I largely appreciate the outcome.  It's a troubling case.  The stuff at the outset looks very bad.  You can easily see this going totally sideways.  The SSA pretty coherently alleged that "the children were at risk of abuse or neglect because Father was incarcerated and Mother was using drugs, was homeless, and had exposed the children to domestic violence with her boyfriend, P.B."  Yeah, that's a problem.  According to the allegations, most of which are amply supported by the apparent facts, "Mother had an unresolved substance abuse problem with methamphetamine; Mother had a history of domestic violence with Father and P.B.; A.G. reported witnessing domestic violence between Mother and P.B.; Mother was not meeting the children’s medical needs; Father had a criminal history including offenses relating to substance abuse and domestic violence; Father was incarcerated; and Father had other children who had previously been removed from him."  You can see why this is all a problem.

At the same time, as the Court of Appeal notes, there was actual progress here once the kids were initially taken away and given to their Aunt.  Father and Mother got better.  Not perfect, for sure.  But definitely better than they were.  There's progress.  At least of a sort.  So you can see why the Court of Appeal might want to give them a continuing chance, rather than having their kids taken away from them for the duration.  Hence the remand.  I'm somewhat sympathetic to that.  Albeit at a more nervous level, I suspect, than the panel here.

And that's really my only slight critique.  The Court of Appeal treats this like an easy case.  It can't seem to understand why the trial court came out the way it did.  The language is largely categorical and dismissive of the trial court.  Whereas I tend to get it somewhat, and think it's a tough one, and even more so since we're not "in the trenches" like the trial judge.

Take the Father's drug use, for example.  The Court of Appeal thinks it's not a problem, and, in truth, it appears that neither did the trial court.  Because the guy generally tests clean.  Oh, except for those two tests in which the sample's overly diluted, which Father says was because he just drinks too much water at work. Maybe, but I mean, really?  Or that other test where he come up dirty but says it was because he had a poppy seed muffin.  Color me overly skeptical, Mr. History Of Substance Abuse and Incarcerated For It, but I'm not totally sure I'm buying your teenage explanations for the tests.

But whatever.  Okay.  Still.  The family is making progress.

But the Court of Appeal seems to think that everything's pretty much rosy, whereas the social worker has a definite different take.  The Court of Appeal is really quite harsh with her (Janet Ford).  And I think perhaps unreasonably so.  As just one example, take this statement by Justice O'Leary:

"Ford’s opinion, which the juvenile court apparently credited, that Mother and Father had not resolved their issues regarding domestic violence is perplexing given the parents’ full participation in their service plans. Ford testified her concern was the parents’ interactions continued."

My goodness.  Read the whole opinion and tell me if you don't agree with Ford.  Mother and Father definitely "had not resolved their issues regarding domestic violence."  It kept happening, including calls to the police etc.  There are restraining orders that are seemingly routinely violated, etc. etc.

That's clearly what bothered both Ms. Ford and the trial court.  Stuff kept happening, in ways that are definitely not good.  Now, maybe the Court of Appeal is right that there's no real certainty that this is going to harm the kids.  But just as a pure matter of fact, I feel positive that Ms. Ford is right that the parents have definitely not resolved their domestic violence issues.  So calling her belief in that regard "perplexing" and being totally confident that it won't affect the kids doesn't sit entirely right with me.

So, again, there's lots of things about this opinion that are great.  But I see a lot more gray here than the Court of Appeal.

Friday, March 13, 2020

Canyon Crest Conservancy v. Kuhn (Cal. Ct. App. - March 12, 2020)

You got your wish.  You created a nonprofit and brought a lawsuit so your neighbor couldn't build a modest (1400 square foot) home on an acre next to yours.  You didn't prevail on the merits, but you made it sufficiently difficult (and expensive) that the would-be neighbor simply abandoned the permit rather than continue to defend your litigation.

Be happy.  You obtained what you wanted.  But we're not going to give you a quarter million dollars in attorney's fees as well.  No significant benefit to the general public sufficient to justify an award under the "private attorney general" doctrine.

Just declare victory against your pro per would-have-been neighbor and go back home.

Thursday, March 12, 2020

People v. Smith (Cal. Ct. App. - March 12, 2020)

I don't know.  This one seems a closer question to me than it appears to be to Justice Benke and the rest of the panel.

Let's see where you fall on this spectrum.

You're a police officer.  A concerned citizen calls you (probably, calls the dispatcher, who calls you) and says that there's an unoccupied car that's been running in the driveway of a residence for around half an hour.  You respond to the call and meet the citizen there.  Yep, there's an unoccupied car, its engine still running.  The windows of the car are up and foggy.  Its headlights are on.  You find out it's a rental car (for whatever that's worth).  The driver's nowhere to be found.

The driveway leads to a house.  You can't hear anyone in the home.  You ring the doorbell to the house several times, and you can hear the doorbell ring, but no one answers.  You also knock on the door and, again, no one answers.

There are your facts.

Here's the question:  What's up?  What do you think?  Why is there an unoccupied running vehicle in the driveway and no one answering at the residence?

The are lots of possibilities, of course.  Some are innocuous.  Maybe the owner just really likes a warm car in the winter (unlikely to be necessary down here in Southern California, but possible).  Maybe the owner just forgot to turn it off, went inside, and fell asleep.  Maybe the owner started the car and then inexplicably decided to walk to the grocery store.  Lots of possibilities over which we need shed little concern.

But other possibilities involve danger.  Maybe the owner had a heart attack, staggered inside the residence, and is unconscious.  Maybe the owner got mugged (or kidnapped).  Maybe there's some other type of foul play involved.

As a police officer -- or even as a concerned citizen -- you have to ask yourself:  "Based on what I know, which admittedly isn't much, what's the probability that there's someone inside the house who's in distress and needs some critical help."

You know as much as the officer here did.  What are the odds?  Fifty percent that there's someone in the house who needs help?  Ten percent?  Eighty percent?  Yes, yes, I know:  You can't be sure.  But what are the odds?  They're clearly not zero, and they're clearly not a hundred.  What do you think?

Here's what the Court of Appeal says:

"Similarly here, absolutely no evidence supported a conclusion that anything was amiss inside the residence."

That's pretty darn categorical.  "Absolutely no evidence" at all?!  Not to me.  The evidence that existed certainly suggested at least a chance that there was someone in the house that needed help.  A heart attack.  A drug overdose.  Something that made the person make the very, very unusual decision to leave his car running and unoccupied for a half hour.  That's unusual.  So when the Court of Appeal says there are "no facts that reasonably supported [the officer's] concern that someone inside the residence might be suffering from a medical emergency," that just sounds wrong to me.  There were surely no facts that proved that someone was in a crisis in the house.  But even from the mere facts recited in the opinion, those facts created (I think) a legitimate concern.  Concern based on real facts.

So does the community caretaking, or emergency aid, or some other exception to the warrant requirement apply on these facts?  Maybe.  Maybe not.  Reasonable minds might well disagree as to both (1) how much of a concern suffices to create an exception to the warrant requirement, as well as (2) whether that standard, whatever it is, was satisfied here.

But at least for me, I think that the circumstances here were sufficiently unusual -- and in a way that I could easily imagine would result in a person in distress being in the home -- to create at least a non-trivial (i.e., real) risk that the officers would enter the home with a belief that there was a person therein who needed help.  Maybe you suppress any evidence therein regardless.  Maybe not.

But to say that the facts described above entail "absolutely no evidence [that] supported a conclusion that anything was amiss inside the residence?"  Nah.  Not for me.  There's some evidence for sure, and the only issue is whether it's enough to vitiate the need for a warrant.

So, for me, a much closer case than it is for the Court of Appeal.

Wednesday, March 11, 2020

People ex rel. Becerra v. Shine (Cal. Ct. App. - March 11, 2020)

I understand that this opinion was originally unpublished, so perhaps isn't crafted as carefully as one originally designated for publication.  After all, the trustee here basically just wants to know if he's indeed getting stiffed for over $3 million, and the Court of Appeal unambiguously says "Yes."  In light of that central result, one might legitimately give some leeway if the explanation of why the Court of Appeal comes out that way isn't spot-on perfect.  After all, the money flows the way it does regardless.

That said, try as I might -- and I've tried hard -- I can't exactly tell what Justice Jones is trying to say in this opinion.

If her point is that the trial court awarded $1.4 million in fees and costs to California and that wasn't an abuse of discretion given these facts, yep, right on.  Exactly right.  The trial court was there, the trustee definitely did some bad stuff, there's an attorney fee provision in the statute, and given all of the above, what the trial court did makes sense.  Affirmed.  Every time.

But I feel like she's trying to say more.  Like, in several places in the opinion, that she's saying that the ordinary things that you look at when you decide whether fees are reasonable -- i.e., the level of success -- don't matter in the context of state-initiated charitable trust actions.  (See., e.g., "Shine contends section 12598 “allows only ‘reasonable’ fees to be considered,” which “requires courts to appraise the fee claimant’s goals and results in the litigation.” We are not persuaded.")

To that I must say:  Nay, nay, a thousand times nay.

The statute says that only "reasonable" attorney's fees may be recovered.  We've pretty much always read that to mean that the fees need to be based upon things like the lodestar, the degree of success, complexity, etc.  It's typically not "reasonable" to spend fifty million dollars on fees to get, say, a $100,000 recovery.  A paying client typically wouldn't do that.  Neither should a prevailing party under a fee-shifting statute, lest we encourage unnecessary/wasteful/socially deleterious litigation.

Justice Jones says that this statute is different because an earlier version expressly said that the court must make express findings regarding the nature of the success and made particular findings in that regard a precondition of a cost award.  ("[T]he court shall make findings on whether the Attorney General’s action has resulted in pecuniary benefits or corrected a breach of trust for any charitable organization, or charitable purpose. If the court finds in the affirmative, the court shall award recovery of costs.")  There must have been a reason for that change, she says, and that reason was to make degree of success irrelevant to a determination of the reasonableness of fees.

Not so.  First, eliminating a factual precondition to a cost award isn't the same as saying that event isn't relevant to a fee award.  The two are different.  Second, merely saying that you no longer have to make express findings about something similarly doesn't mean that you're no longer able to consider it.  Finally, the change had a separate purpose as well; the former statute defined success as limited to two specified results ("resulted in pecuniary benefits" or "corrected a breach of trust"), whereas the revised version permits success based on any of the ordinary measures of success, not merely these two.  So defining the statutory term "reasonable" fees to mean the same thing the Legislature pretty much always intends it to mean hardly is disproven by the amendment of the statute.

Nor would such a reading of the statute lead to beneficial results.  For all the plethora of reasons the courts have repeatedly expressed for permitting (indeed, requiring) an assessment of relative success when a court determines whether or not the fees incurred in obtaining that result are reasonable.

So I'm more than okay with the result here.  It doesn't seem much challenged.

But the rationale and statutory interpretation part; that part seems both unnecessary as well as unwise and unsound.

Better to have just gone with the narrowest way of resolving this case; namely, that the award here was reasonable.

Tuesday, March 10, 2020

People v. Corrales (Cal. Ct. App. - March 10, 2020)

It's not a huge deal.  But you have to wonder what the trial judge was thinking here.

For reasons entirely unexplained in the opinion, and that are perhaps unexplainable, Mr. Corrales burns a palm tree next to a strip mall.  He gets charged with a couple of felonies, but the jury elects to convict him only of a misdemeanor.

Mr. Corrales gets sentenced to six months in jail, but since he couldn't make bail, he'd already been there, and had nearly a year of custody credits.  So he gets released immediately.

But on his way out of the courtroom, the judge tells him not to go back to the strip mall.  It's not a condition of probation or anything (there's no probation).  It's just an order.  She says:

“[H]e should stay away from that location, because everyone at that location who was there that day and saw what he did and went through that obviously would be upset to see him on that property again. . . . I am going to order you – again, this has no teeth to it, other than telling you not to go to that location, and it would be a violation of the court order if you go to that location. But again, if you don’t follow it, it’s certainly not a violation of probation, it’s a violation of a court order which could mean a new charge against you.”

The judge apparently means he can't ever go back to the place, since there's no time limit on the order.  Mr. Corrales appeals.  The Court of Appeal reverses, holding that there's neither statutory nor implicit authority for the imposition of any such order.

Which seems right.  But which leaves the judge's reasoning unclear.  Why issue an order that she says has "no teeth to it?"  Why is it so critical that he be excluded from the strip mall -- sure, I'm sure the people there would rather not see him, but as long as he's not burning anything or annoying anyone, what's the harm?  And I presume that if it's private property the owners can always give him a no trespassing order themselves.

I'm sure that the trial judge was well-intentioned.  It just seems odd to add a "toothless" order at the very end like this.  I'd love to know if there was more to it, or what the judge was thinking.

Regardless, no authority for such an order.  So away it goes on appeal.

Monday, March 09, 2020

People v. Garcia (Cal. Ct. App. - March 6, 2020)

It's a disturbing story about the home invasion robbery (and accidental murder) of a millionaire in Monte Sereno.

Sometimes your impression of these things is that they're totally random; that it could "happen to anyone."  Mind you, here, the decedent had been partially "set up" by a 19-year old prostitute that  "visited [him] over 100 times at his home in Monte Sereno" and to whom he had given "hundreds of thousands of dollars and three cars over the years."  Morality aside, that's hardly a reason to kill a guy.  Plus, you'd sort of think all that money would buy you some goodwill.  Apparently not.

This is also another one of those cases that (rightly) uses only the first name of the victim but (wrongly, I believe) omits the last name of the murder victim.  His name was Raveesh Kumra, not Raveesh K.

Rest in peace.

Friday, March 06, 2020

Zhang v. Chu (Cal Ct. App. - March 5, 2020)

He's been on the Court of Appeal for less than 15 months.  But I can already typically tell when it's Justice Wiley who's writing the opinion around three pages into it.  His style is that distinctive.

This opinion is much more staccato than his usual prose.  I sometimes write a little like that as well.  Particularly when I'm cranking things out quickly (or trying to cram numerous arguments into a short number of pages).  I'm not sure it always reads especially well when I do.  But it's a style.

As for the merits, it's a malicious prosecution case, and the issue centers around what you have to show to demonstrate a certain type of "malice" in those cases; namely, that you added someone to a lawsuit for the "improper purpose" of forcing a settlement that "has no relation to the merits of the claim."  It's a case in which a plaintiff added a defendant (ostensibly on alter ego grounds) and then promptly dropped him from the suit once a safe harbor motion was filed.  Justice Wiley holds that there was no proof of malice, so affirms the dismissal of the malicious prosecution suit.

Justice Wiley says a lot of things are are clearly right (and relevant); for example, that the fact that someone has added a party in order to up the settlement amount is insufficient proof of an improper purpose, since the whole purpose of changing pleadings (adding parties, etc.) -- indeed, the central purpose of anything in a lawsuit done by the plaintiff -- is to increase settlement value.

Justice Wiley says "unrelated to the merits" many times in the opinion -- indeed, puts it in italics twice -- as a sort of mantra.  He's trying to figure out what it means.  But he never appears to even attempt to describe what the term affirmatively means.  He just takes the ten different arguments that the plaintiff makes and shoots them down one-by-one as purportedly insufficient.

Which is too bad.  Because I think that giving examples of what that term does mean would both help future litigants as well as provide some insight into maybe why the evidence isolated by the plaintiff here might indeed be relevant (or perhaps even sufficient) notwithstanding the Justice Wiley's rapid rejection of each of those individualized components of proof.

Let me give you an example.  Somewhat analogous (albeit more obviously malicious) than the present case.  Let's say a plaintiff files a personal injury lawsuit against Defendant X.  Maybe X is Costco.  Maybe it's my brother-in-law.  Whatever.  There are Doe defendants, and midway through the lawsuit, the plaintiff in that suit (like the plaintiff here) adds me -- Shaun Martin -- to the suit, claiming (as here) that I'm an "alter ego" or in some way responsible for the suit.  Maybe the theory is that I'm a Costco member because I'm liable.  Maybe it's because I talked to my brother-in-law about sports eighteen months ago.  Again, whatever.  The point is that the claim raised by plaintiff is totally without merit.  Frivolous, even. 

So (as in the present case) I file a safe harbor sanctions motion, the other side is (as Justice Wiley aptly notes here) appropriately cowed, and dismisses me from the suit.  I then file a malicious prosecution action.  How am I to prove "malice" under the "improper purpose" prong?

Let's say I don't have evidence, or even reason to suspect, that the plaintiff actually hated me.  But I'm pretty sure he added me to the lawsuit for a fairly obvious reason.  One familiar to anyone who's litigated cases for a while.  Pure extortion.  He knew I had money.  He knew it would cost me money to defend.  So he thought I'd be willing to pay a fraction of my cost of defense to be dropped from the suit.  Good for me, good for him.

Well, to me, that's unambiguously filing a suit for an "improper purpose" that's "unrelated to the merits" of the suit.  Indeed, it's probably the archtype of this sort of improper purpose.

Yet every single thing that Justice Wiley says in this opinion about why the evidence in the present case is insufficient seems to apply totally equally to the hypothetical I've just given.  The purpose was the increase a settlement, sure, but that's not enough, and the merits of the lawsuit were frivolous, but that's not enough, and they were cowed by a motion for sanctions, but that's not enough, etc.  Every piece of evidence is the same.  Yet I am totally confident that the plaintiff in my hypothetical should prevail -- at least on summary judgment (as on an anti-SLAPP motion in the present case -- yet the Court of Appeal says the present case, despite its near identity to my hypothetical, loses.

Why?  Why does my affirmative hypothetical about what's sufficient prevail?  What's the evidence there that gets the plaintiff past the hump?

I think it's because of one of the very things that Justice Wiley casually dismisses in his opinion:  the lack of probable cause.  Yes, I agree, lack of probable cause (the merits) is a different element than the presence of malice.  But I don't think they're entirely independent.  Reasonable inferences about the former may well be sufficient to establish the latter.

Let's take an even more extreme hypothetical.  Tomorrow, someone who's hit by a car in Alabama driven by X decides to sue Justice Wiley for this accident.  Justice Wiley's never been to Alabama.  He has nothing whatsoever to do with the accident.  The plaintiff pleads that Justice Wiley caused the accident, but the pleadings don't explain why (or they're simply nonsense), and more importantly, it's just totally untrue.  It's like Justice Wiley was randomly picked out of a hat to be sued.

Now, plaintiff doesn't admit that he picked Justice Wiley's name out of a hat.  Nor is he stupid enough to send a settlement letter that says "Give me $10,000 in settlement because it'll cost you more than that to come to Alabama and hire a lawyer and get the suit dismissed."  He just tells Justice Wiley:  "I think you're responsible, and my damages are $100,000, so I think you should pay $10,000 to settle the case."

That's a paradigmatic example of someone obviously extorting someone; i.e., filing a lawsuit for an improper purpose "unrelated to the merits" of the suit.  But the only way we know that is because we look at the merits and say:  "This is obviously crap.  There can't be any purpose other than extortion to sue a guy so totally unrelated on the merits."  But Justice Wiley's opinion says:  "Nope.  Can't do that.  Lack of probable cause can't establish malice.  Different elements."

There may be cases where lack of probable cause is sufficiently close that, yes, you've got to have more.  Maybe the present case is one of them.  But it seems to me that there are also cases in which sufficient lack of probable cause even standing alone generate a reasonable inference that the suit was for an improper purpose.  My hypotheticals, definitely.  Maybe even (at least arguably) in the present case, though I'd have to think about it more.

The point is this.  First, sometimes it helps to say what is sufficient before you complete your task of adjudicating what's purportedly not sufficient.  Good for you, good for the public. 

Second, and more concretely, here, I think it's insufficient -- and probably affirmatively bad law -- to say that (as the Court of Appeal does here) that absence of probable cause categorically is insufficient to prove malice because it's a different element.  Sometimes when you say something super quickly, it's not as well thought-out as it might otherwise be.  Here is, in toto, what Justice Wiley says on this point:

"Ninth, Zhang argues the trial court’s finding on element one -- no probable cause -- should satisfy element three: malice. This argument is legally invalid. The two elements are distinct. (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 493–499.)"

That's pretty darn fast.  Particularly for a topic that the cited case talks about for six or seven full pages.

Plus, it bears mention that the cited case isn't controlling authority; it's just a Court of Appeal opinion from a couple of decades ago.  One that I suspect may well be wrong.  Downey Venture says that the existence of a subjective belief (e.g., wrongful intent) not only can never be inferred from objective assessments (e.g., lack of probable cause), but that the latter isn't even relevant to the former.  Not so, I think.  When my friend points at the sky and says "The sky is green," the objective frivolousness of that assertion is some -- indeed, is powerful -- evidence that he does not subjectively perceive it so.  It may not be conclusive proof.  But it's darn relevant.  So too here.

So this stuff is worth thinking about.  Maybe even talking about at some length.  Because I'm fairly confident the truth lies somewhere in between the competing categorical statements "Absence of probable cause always shows malice" and "Absence of probable cause never shows malice."

And it's important.  Especially when you're imposing an attorney's fees award on an anti-SLAPP motion.

Thursday, March 05, 2020

Mattson v. SBS Trust Deed Network (Cal. Ct. App. - March 5, 2020)

On first read I felt like the plaintiff here should have been sanctioned for bringing the lawsuit.  But as I read through the opinion, that changed to just feeling bad for the guy.  Still thought he should lose the suit (which he did).  But still.  Felt bad for him and didn't want him to be sanctioned.

He's a guy who buys up trust deeds at foreclosure sales.  He sees this one deed on a software platform called "Property Radar" says it's for $414,500 on a property worth more than than, and there's a "1" in the text field that says what position the loan is in -- signifying that it was a first trust deed (the most secured).  So he decides to bid on it, ultimately paying $502,000 for it, via cashier's check.

But the guy overlooks the fact that there's other information in that same document that indicates that the deed is actually a junior lien, plus there's a lot of other information in his possession to basically the same effect.  But he's excited and his initial impression (i.e., that it's a first deed) seems (to him) to be confirmed in a particular telephone call, which is why he made the bid he did.

But he quickly learns that what he just bought is actually a second (junior) lien, worth a ton less than what he paid.  So he tries to back out of the sale, including claiming that the cashier's check that he used was stolen, etc.  None of that works.  So he sues, asserting unilateral mistake etc.

The Court of Appeal, like the trial court, essentially says;  "Your bad, not the defendant's."  You knew it was an irrevocable sale.  You didn't carefully read the stuff in your possession or conduct additional investigation.  Bad deal, for sure.  But you're stuck with it.

And that's right.  Sorry about that.  It's a lot of money to blow, for sure.  But it is what it is.  Be more careful next time.  There's a reason these foreclosure sales are irrevocable.

So no sanctions.  But no relief either.

Wednesday, March 04, 2020

People v. Shumake (App. Div. Sup. Ct. - March 3, 2020)

You almost invariably learn something new from the published opinions of the Appellate Division of the Superior Court.

Maybe everyone else already knows this, but from this opinion, I learned that just like there's an "open container" law for alcohol (i.e., there can't be an open container of alcohol anywhere inside a vehicle that's being driven), so too is there a somewhat analogous "open container" law for cannabis.

Section 11362.3 of the Health and Safety Code says that it's not okay to "[p]ossess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation" and Section 23222 of the Vehicle Code provides that "a person who has in their possession on their person, while driving a motor vehicle upon a highway or on lands . . . a receptacle containing cannabis or cannabis products . . . which has been opened or has a seal broken, or loose cannabis flower not in a container, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100)."

These provisions seem in desperate need of a Legislative rework, I think.

There are separate statutory provisions that deal with driving while under the influence of drugs (prohibited) and consuming marijuana while driving (also prohibited) with which I have no real quarrel.  You shouldn't be driving while stoned or getting stoned while driving, as the former is dangerous and the latter leads to the former.

Section 23222 of the Vehicle Code seems the one most enforced in practice.  This is perhaps not surprising, since Section 11362.3 is an exception -- really, a statement of non-exception -- and it's driving with marijuana that gets most of the attention anyway (as opposed to boating, flying, etc.).  Apparently, as this opinion published today reflects, it's the view of many police officers that the Vehicle Code prohibits you from possessing any marijuana in a vehicle unless it's in its original, factory-sealed packaging; e.g., the opinion's reference to "Officer Jones’s belief that any cannabis being transported in a vehicle must be in a heat-sealed container."

You can see why the police might so read Section 23222.  Section (b)(1) does indeed say that it's an infraction to be driving with  "a receptacle containing cannabis or cannabis products . . . which has been opened or has a seal broken."  So if it's "open" or has a "seal broken," it's not okay.  Which may perhaps means that you've got to have the original sealing.

But two things.  First, on that point, the statute's potentially inconsistent.  It first says that you can't have a "receptacle" that "contains cannabis" that "has been opened."  But then immediately thereafter the statute reads "or lose cannabis flower not in a container."  Here, there was "loose cannabis" -- i.e., "flower" or "bud" (in the stoner lingo) -- contained in an flexible plastic packaging that you open by squeezing.  Obviously, that "receptacle" (the plastic) has been opened, since that's how the bud got in there in the first place, as well as how you take it out (by squeezing), so under the first prong, there is an apparent violation.  But the Appellate Division says since it's "bud" (i.e., "flower"), it's also "loose cannabis," which the statute prohibits only if it's "not in a container."  But since here, there's a plastic container, it's not illegal.  Which is why the defendant here gets off.

Upon reflection, I'm not actually confident that the statute means what the Appellate Division thinks it means.  Footnote 2 of the opinion says:  "Although the rationale is unclear to this court, Proposition 64 differentiates cannabis, which must be in an unopened, sealed, container, from 'loose cannabis flower,' which only needs to be in a closed container."  The reason that rationale is unclear is because, I think, that's not what how the statute actually reads.  (Supported by the fact that, yeah, if that's what it said, it'd be silly, as well as indeterminate, since it's unclear what the difference between "cannabis" and "loose cannabis" entails, since they're both cannabis.)

What the statute instead says, I think, is as follows:

(1) Cannabis that's contained in a receptacle has to be in a sealed receptacle.  Most cannabis is indeed held in a receptacle.  A bottle.  A box.  A baggie.  If it's in a receptacle, then that receptacle must be sealed.  To use the words of the statute:  it's an infraction when "a person [] has in their possession on their person, while driving a motor vehicle upon a highway or on lands . . . a receptacle containing cannabis or cannabis products . . . which has been opened or has a seal broken."  Get it?

(2) By contrast, cannabis that's not contained in receptacle is prohibited while driving.  Period.  Cannabis that's not in a receptacle is described in the statute as "loose flower cannabis."  If it's not in a receptacle, it's just sitting there.  On the console.  On your dashboard.  On your lap.  Wherever.  The statute simply says that's not allowed.  In the relevant words of the statute:  "a person who has in their possession on their person, while driving a motor vehicle upon a highway or on lands . . . loose cannabis flower not in a container, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100)."  Get it?

That's why the statute has an "or".  You're liable (1) if your cannabis is in a receptacle that's been opened, or (2) if your cannabis is not in a receptacle.  The more I think about it, the more I'm convinced that the Appellate Division just read the statute incorrectly.  Which, by the way, means that the result here should likely go the other way.  And that everyone who drives should know that you're not allowed to have marijuana in your vehicle unless it's in an unopened container (e.g., sealed).

Could the statute be worded better?  Absolutely.  So that's one change I'd make.  At a minimum, to make it clearer.  So we don't have confusion of the type expressed here.  When three smart judges, trained in the law, are potentially confused, how can you expect the average person -- much less the average stoner -- to figure it out?

While the Legislature's at it, it should probably change the statute entirely.

Two points in this regard.  First, the statute's hopelessly outdated.  Paragraph (b)(1) contains the prohibitions that I've discussed up to now.  Basically saying that you can't have "open" weed in your car (e.g., in an unsealed container or out in the open).  Paragraph (b)(2) then says that (b)(1) doesn't apply if the marijuana's in your trunk, which makes sense.  But then paragraph (c) goes ahead and says that paragraph (b) -- which contains the underlying prohibition -- doesn't apply at all "if both of the following apply: (1) The person is carrying a current identification card or a physician’s recommendation. (2) The cannabis or cannabis product is contained in a container or receptacle that is either sealed, resealed, or closed."

That perhaps made sense in the old days, when it was only legal to have "medical" marijuana, and so people obtained identification cards, physician recommendations, etc.  But nowadays, since it's okay to have recreational marijuana, there's basically no point to that anymore.  So given the contours of the existing law, it makes little sense to say that it's okay to drive with weed in a closed container (paragraph (c)) if you've got a scrip from a doctor, but not okay to do so if you don't have a scrip (paragraph (b)).  The dangers (and potential) of driving while stoned are the same in both cases.  And since it doesn't get you much these days to have a scrip, we shouldn't expect people to have it in any event.  Hence making the exception meaningless, irrelevant, and irrational.

The rule should be the same for everyone.  Either it's (1) okay to have weed while you're driving (open or not), or (2) everyone needs to have it in a closed container, or (3) everyone needs to have it in a sealed container.  Pick one of these rules and write the statute that way.  Unlike the current one.

And, while we're at it, let's pick the rule that makes the most sense.

"Open container" laws for alcohol, in my view, are only loosely analogous to "open container" laws for marijuana.  We shouldn't do (or expect) the same for both.  It makes sense (IMHO) to say that you can't have an open bottle of beer, or cup full of vodka, while you're driving.  That stuff spills.  That stuff goes bad.  The only (or at least likely) reason you have the thing open while driving is because you're going to drink it on the road.  Otherwise you'd have just kept the top on the bottle, or waited to pour once you got to where you're going.  We don't want to limit our ability to pull you over to only those circumstances in which we physically see you take a swig from the thing.  We know that you are likely to drink from the container in your car because (1) you've got an open container there, and (2) there's little reason to have an open container of alcohol (given spillage and spoilage risks) other than your desire to drink and drive.

But those same principles simply don't apply to driving and marijuana.

Weed doesn't spill or go bad in the same way as alcohol.  And you typically carry marijuana in an open (or openable) baggie, pill bottle or other receptacle in your vehicle not because you're planning to smoke it immediately and in the car, but rather because you're transporting it, and that's the way it's generally packaged.  You're taking it home, or taking it to a party, or taking it to a park, or taking it to a friend's house.  Most likely, yes, this is not the first time you've used your stash, so even if the bottle or baggie or whatever was originally sealed (and, in fact, that's uncommon anyway), it's not sealed any longer.  But that doesn't mean you're about to use it in the car.  A pill bottle half-full of cannabis is much more analogous to an unopened bottle of beer.  Sure, you're going to eventually use it.  But probably not right now.  Which is why it makes sense to have a prohibition on open containers of beer but not open containers of marijuana.  Different rules are appropriate given what we know about the purpose and typicality of open (or openable) containers of the various substances.

I can imagine situations that might be different.  For example, if a driver's carrying a bong in his right hand while driving, and the bong's already been packed with weed, well, yeah, maybe I could see an argument that such a setting demonstrates a real probability of use while driving.  Mind you, others might want there to be some further step -- like lighting the thing or whatnot -- since I'm certain lots of people transport their bongs either loaded or residually loaded.  Regardless, for the most common situation -- a container partially full of weed, previously opened -- there's simply not the typical risk of use while driving that justifies essentially a complete prohibition on transport (i.e., the requirement of a previously-unopened container).

So it seems to me that a rational Legislature might decide to say either (1) that, given what we know about people transport and consume cannabis as opposed to alcohol, we're okay with people having open containers (e.g., baggies) of cannabis in their car, or, if you want to be as strict as possible, (2) tell people that they've got to close their pill bottle or tie their baggie or whatever once they get in the car (which is basically what the statute requires now for people with a doctor's note).

That's what makes sense to me.  Either of which would be infinitely preferable to the (confusing and unsound) statute as it exists today.

Monday, March 02, 2020

Scalia v. Employer Solutions Staffing Corp. (9th Cir. - March 2, 2020)

Not all that much for our first work day in March 2020; one published opinion from the Ninth Circuit, one from the California Supreme Court, and nothing from the Court of Appeal.

But the Ninth Circuit opinion is at least worthy of brief mention.  To wit:

(1) The plaintiff is Scalia.  Eugene Scalia, the Secretary of Labor.  And, yes, he is the son of Antonin Scalia.  His first appearance as a plaintiff in a published Ninth Circuit opinion, I believe.

(2)  You couldn't have an easier laydown victory as a plaintiff, I think.  There's a staffing company that employs various people to work at other companies.  They place a ton of employees at one such company, Sync Staffing, which in turn sends them to TBG Logistics, where they unloaded deliveries for a grocery store.  TBG records their hours and sends those hours to Sync, which then sends them to the defendant.  The relevant spreadsheet shows that many employees worked over 40 hours, which means they're entitled to overtime (i.e., time and half), which the defendant would normally pay, and to which the employees are legally entitled.  So far, so good.  Happens every day.

But then a specific employee of defendant gets a call from Sync that says, essentially, "Don't pay them overtime; just pay them their regular rate."  Which, obviously, is totally illegal.  But the relevant employee of the defendant nonetheless does exactly that.  And, in the process, has to override a ton of computerized warnings that say (essentially) "What you're doing is illegal."  Not good.

The employees who are stiffed on their overtime pay complain, the Secretary of Labor sues on their behalf, and the defendant is held liable.  Totally justly.  Defendant has to pay the overtime plus a statutory penalty in the same amount.  Again, IMHO, totally fine.  Defendant says its conduct was not willful because it was just a low-level employee who did this, but the Ninth Circuit disagrees; again, rightfully so.  If that's who you hire to do the pay, and she does it wrong (willfully), that's on you, Mr. Employer.  Hire someone better next time.  One who maybe does not blindfully follow instructions to stiff people on their statutorily required overtime pay.

(3)  Judge Graber's published opinion repeatedly mentions the full name of the employee of the defendant who made this error.  Respectfully, I probably wouldn't do that.  The employee has a fairly unusual name; I'll call her Michaela H., but you'll see her name around 20 times in the opinion, and I think there's only one person in the universe with that particular name (here's her LinkedIn page).  She definitely made a mistake, and it's a big deal, and (as I said before) her employer should indeed be liable for that.  But the individual employee wasn't sued, wasn't in the caption, and probably does not need this published opinion to be the first thing that pops up whenever you type in her name on Google.  (Though, given the opinion, I might suggest that Michaela delete the line on her LinkedIn page that says "My main goal with any job I am performing is to do my due diligence to make sure everything is done in an accurate and timely manner."). 

I'm admittedly influenced by the fact that not only is her name unique, but the employee also appears to be very young (graduated college in 2012) and, but for the error here, somewhat sympathetic.  (Representative line from her LinkedIn page:  "Every other Sunday I volunteer for a couple of hours in the one-and-a-half year old room [at the Living Word Christian Center].  I set up the room, assist the classroom coach in caring for the children, and sanitize the toys after all the kids have been picked up by the parents.")  Anyone who wipes down the toys to get rid of kid slobber on a biweekly volunteer basis can't be all that bad.  No need to have a published opinion that she'll be hard-pressed to professionally live down.  Especially since what this young person did was apparently to follow the improper instructions of someone who talked to her over the phone.  A serious mistake, to be sure, but a mistake regardless.

So maybe be nice and abbreviate that unusual last name?

Thursday, February 27, 2020

San Jose Neurospine v. Aetna Health (Cal. Ct. App. - Feb. 27, 2020)

When I write first drafts of briefs, articles, etc., I almost invariably use italics for particular words or phrases that I want to emphasize.  Not many bolds (and no exclamation marks), but italics, yeah.  I do that.

But when I get to second and third drafts, I try to take most of them out.  Not all of them.  But most of them.  Because, yes, I felt strongly about 'em at the time, and thought they helped the reader to understand the point (and the emphasis).  But usually, they're more distracting than helpful.  So at least in academic and advocacy pieces, I try to use emphases somewhat sparingly.  On the theory that readers generally don't appreciate them nearly as much as I do.

But maybe I'd do something differently for Justice Gilbert.

There are a lot of italics in this opinion.  At lot of words and phrases that get emphases.  Pretty much one or two every page.

They don't bother me at all.  In fact, I think they help identify his point.  I concede that they may make the opinion read a bit more, say, aggressive than a mere neutral explication of legal principles.  But that's okay.  At least for me.

Maybe Justice Gilbert prefers writing italics to reading them, in which case I should keep to my usual practice.

But I can honestly say that I was struck by how many words and phrases were italicized in this opinion.  Not what you usually read.

Wednesday, February 26, 2020

Wilkin v. Nelson (Cal. Ct. App. - Feb. 26, 2020)

Wife goes to an attorney to get a trust in which to place a piece of her separate marital property, but leaves with a trust that (apparently accidentally) puts all of her property into trust.  After her death, her husband seeks to reform the instrument, and the trial court elects to do so, finding clear and convincing evidence that the document didn't reflect the decedent's actual intent.  The Court of Appeal affirms.

All good.  Right as it should be.

But the thing about the opinion that has me a bit concerned is the paragraph at the bottom of page 9.  That portion of the opinion reads:

"The interpretation of a will presents a question of law for our independent review when there is no conflict or question of credibility in the relevant extrinsic evidence. [Cites] To the extent the probate court’s decision rests on its findings of fact, however, those findings are reviewed for substantial evidence. [Cites] The clear and convincing standard, however, “applies only at the trial level. On appeal, it is assumed that the trial court applied the proper standard and the judgment will not be upset if there is substantial evidence to support it.” (Shupe v. Nelson (1967) 254 Cal.App.2d 693, 700; see Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)"

Now, personally, I think that's correct.  It's exactly what the cases that Justice Perren cites indeed hold.  As well as what Witkin says is the law of California with respect to appellate review.  A trial court's factual decision is reviewed on appeal for substantial evidence, which is what the Court of Appeal here does.

But the lingering problem is that not everyone agrees.  The California Supreme Court is currently reviewing this precise issue.  As that tribunal describes that pending case:

"Conservatorship of O.B., S254938. (B290805; 32 Cal.App.5th 626; Santa Barbara County Superior Court; 17PR00325.) Petition for review after the Court of Appeal affirmed the judgment in a conservatorship proceeding. The court limited review to the following issue: On appellate review in a conservatorship proceeding of a trial court order that must be based on clear and convincing evidence, is the reviewing court simply required to find substantial evidence to support the trial court’s order or must it find substantial evidence from which the trial court could have made the necessary findings based on clear and convincing evidence?"

There's a decent argument that if the California Supreme Court decides that case the other way, then the Court of Appeal's decision here would need to be reversed and remanded.  Because if the Court decides that the clear and convincing evidence standard does not, in fact, disappear on appeal, then the Court of Appeal's decision to eliminate it here was wrong, so as presently structured, we'll have to do the whole thing over again on remand.

And I say that because I'm extremely confident that the remand wouldn't matter in the slightest; that the Court of Appeal would come out the exact same way even if it reviewed for clear and convincing evidence on appeal.  We'd just waste more time and add yet more attorney's fees to a fairly small will dispute that's already probably sucked up a fair amount of the underlying assets litigating about them.

So given the pendency of Conservatorship of O.B., were I the Court of Appeal, in the interests of justice, I might get ahead of it.  And expressly explain that I'd come out the same way even if the California Supreme Court decides to abandon the substantial evidence test and to say that the Court of Appeal has to review for clear and convincing evidence (just like the trial court).  That way there will be no need for the parties to seek review, wait to see what the California Supreme Court decides, potentially participate in new proceedings on remand, etc.

No reason not to.  It's an extra line that's (1) accurate, and (2) may save the parties as well as the Court of Appeal some time, trouble and effort.

FULL DISCLOSURE - I'm representing the respondent in Conservatorship of O.B. on a pro bono basis, and argue therein for the retention of the standard applied by the Court of Appeal in today's opinion.  The content of the Court of Appeal's opinion doesn't affect in the slightest the outcome of Conservatorship of O.B., but no reason not to disclose where my lawyerly sympathies lie here.

Tuesday, February 25, 2020

In re Brown (Cal. Ct. App. - Feb. 25, 2020)

Read this one while you can.  Because it'll soon be in the California Supreme Court and no longer controlling precedent.

The question at issue is whether People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo) is retroactive.  Gallardo held that "when determining whether a prior conviction is a serious felony for purposes of increasing a sentence, the trial court is limited to 'those facts that were established by virtue of the conviction itself -- that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.'”  In short, you've just got to look at the record of conviction.  Nothing else.

The Court of Appeal here held that Gallardo was indeed retroactive, and accordingly granted the defendant's habeas petition.  But (1) Justice Menetrez disagreed, and dissented, and (2) back in December, another panel in the Court of Appeal held that Gallardo wasn't retroactive, essentially for the same reasons expressed here by Justice Menetrez.  (In re Milton (2019) 42 Cal.App.5th 977, 982)

So there's (1) a split in the panel opinion, (2) and a split in the various Court of Appeal holdings, (3) on an issue that's present in a boatload of cases.

There's exactly a zero chance that the California Supreme Court doesn't grant review.  The petition writes itself.