Boermeester v. USC (Cal. Ct. App. - May 29, 2020)

Two very, very, very different takes on the equity of USC's decision to expel USC kicker Matthew Boermeester from the school for intimate partner violence in 2017.

Read the whole thing at your convenience.  Troubling regardless of which side you take, IMHO.

Rubinstein v. Fakheri (Cal. Ct. App. - May 29, 2020)

When someone takes out a loan and then admits they don't repay it, it's not surprising that (1) the trial court will find in favor of the plaintiff suing for the loan, and (2) the Court of Appeal will affirm.

The defendant (Mr. Fakheri) can -- and does -- make a ton of different hypertechnical arguments in an attempt to prevail.  But the optics are terrible.  Just terrible.  You've got to repay the money you took.  Period.

Last paragraph of Justice Lui's opinion:  "Rather, the judgment awards only the principle amount that Fakheri owes directly to Rubinstein (either personally or by assignment from Lanark) because of the loan that Fakheri received. That obligation does not involve any promise to answer for the debt of another, and the statute of frauds therefore does not apply."  Seventh word should be principal.

Otherwise spot on.

Insalaco v. Hope Lutheran Church (Cal. Ct. App. - May 27, 2020)

Sometimes an opinion is worth mentioning simply because one might cite it.

Like this one.

It's a pretty darn categorical case that holds that even if a party has entirely failed to be diligent in discovery, a requested continuance of a motion for summary judgment still needs to be granted if the not-yet-obtained discovery is critical to the opposition.  Justice Miller doesn't say this in exactly those terms, but that's nonetheless the holding.  That even if (as here) there was no rational reason why the nonmoving party hadn't conducted yet a site inspection of the property during the prior year of discovery, that lack of diligence doesn't matter when there's not yet a trial date, discovery hasn't cut off, there's been no prior request for a continuance, and the requested discovery is essential.

The case basically obviates the due diligence requirement in that setting, holding that the need to get the MSJ right outweighs whatever marginal downside exists from continuing the motion in such a setting.

Plaintiffs can (and should) use the case to request and obtain a continuance of an MSJ  Defendants should be aware of the case so they don't schedule a hearing too early and get it continued on this basis.

Good to know for both sides.

In re Tom Smith (Cal. Ct. App. - May 26, 2020)

I'm starting to think that maybe I'm just a minority of one on this particular topic.

This is another case in which the defendant says his lawyer admitted his guilt at trial contrary to the defendant's wishes.  The Supreme Court recently held that you can't do that, and so the defendant here filed a habeas petition requesting the same relief (a new trial).  The Court of Appeal denied the petition (just like it denied defendant's original appeal), but the California Supreme Court then issued an order to show cause for the Court of Appeal to explain why the petitioner wasn't entitled to relief under the Supreme Court's precedent.  At which point, today, the Court of Appeal affirms its original conclusion and holds (again) that the defendant is not able to prevail on the merits.

I talked on Friday about one of these cases, and discussed at length why it seemed to me that the Court of Appeal in that case overlooked the significant factual discrepancy between the defendant's story and the defense counsel's version of the facts.  I thought that the defendant said one thing and the attorney said another, and so an evidentiary hearing was required -- even though the Court of Appeal thought there was no conflict at all.

Today's opinion -- the very next business day after Friday's opinion -- seems more of the same.

Maybe even worse.

I was struck by the strategy here.  It's a case involving a murder at Patton State Hospital.  One of the patients gets strangled in a fairly gruesome fashion, and the defendant gets charged.  The evidence against him is, quite frankly, pretty darn overwhelming.  He's virtually caught in the act, and then there are his repeated and unabashed confessions to the offense.  (For example:  "[W]e just wanted to see how it felt to kill someone” and "I killed him. I strangled him with the suspenders. . . . because [the victim] was a child molester.”)

Pretty tough to overcome.  Definitely.

Trial eventually comes around.  Defense counsel doesn't give an opening statement at all.  Then, at the defense stage, counsel puts his client on the stand (presumably because the defendant insisted on testifying) and the client insists that he's totally innocent and that this confession to the police was a lie.  There's no doubt that this is his defense:  as the Court of Appeal notes, at trial, defendant "denied killing Lucas, claiming it was Zamora and Porter who did it.  He said he was going to leave, but Porter threatened to get him too if he did."

Okay.  That's his story.  It's not a great one, given the confessions and evidence and all.  But it's his version of the facts, and the jury gets to decide.  A decision that's probably even a little easier after the rebuttal phase of the trial, in which a fellow inmate testifies that defendant told him that he "strangled the victim from behind, and it turned him on sexually" and "that if he could win at trial, he would go back to attack and rape other women as he had done in the past."  But, hey, that's life in the big city.  Defendant says he's innocent, the prosecution says he's guilty, and the jury chooses whether guilt has been established beyond a reasonable doubt.

Now it's time for closing arguments.  The prosecution's argument goes pretty much how you'd expect, the only drama being that, in the middle of it, the defendant stands up and says that he wants to leave the courtroom, saying "It’s just been so long, your Honor. I’m tired of hearing it. I didn’t do it."  But he ends up staying anyway.  The only point being this:  It's pretty darn clear the defendant's story is the one he told at trial:  That he's (allegedly) completely innocent, and that that's his defense.

Now it's time for defense counsel's opening statement.  Which begins in a way that, to me, is both understandable and yet bizarre.  Defense counsel tells the jury that the trial has made his job very very hard, telling them:  "But I’ll carry on. For all of you parents out there let me offer you some advice for a certain few who might meet this criteria in terms of for a job description. Undeterred by impossible odds. Ready to change your story at the drop of a hat. The ability to look 12 citizens in the eye and look sincere. Doesn’t mind losing once in a while. That would be a defense lawyer. And welcome to the defense bar.”

Look, I get that the job is tough sometimes.  But it's a murder case.  Maybe don't highlight that your job is to be "ready to change your story at the drop of a hat" and to try to "look sincere" even when you're arguing things you obviously don't believe.  That's something to complain about after the trial, in a bar or to your spouse or the like.  I'm not so sure it's an awesome strategy at trial.

Regardless, then, after talking about the presumption of innocence and the like, the defense counsel told the jury that it was "his belief that this was a second degree murder, not a first degree murder case."  At which point the defendant gets up and starts objecting to his own lawyer.  As the Court of Appeal notes, "[a]t that point, petitioner interjected, “Did I understand him correct? Did he just say—” The trial court asked petitioner to be quiet. Petitioner stated, “He said second-degree murder. I said I didn’t do it. [¶] . . . [¶] I object to that.”

So his counsel is saying that he's guilty of second degree murder, but the client is saying -- indeed, has testified under oath -- that he's completely innocent.  Seems a fairly stark divergence, no?

Lest there be any doubt, later on during the defense counsel's closing, there's this (classic) exchange as counsel continues to explain why his client is guilty to second degree murder:

“THE DEFENDANT: And that’s my lawyer saying that. 

THE COURT: Mr. Smith— 

THE DEFENDANT: I want to go back to my holding cell, man. I’m tired of this bull shit. I don’t want to be here, homie. 

THE COURT: Mr. Smith— 

THE DEFENDANT: I don’t care. I don’t want to listen to that bull shit. I did not commit murder. I didn’t kill that son of a bitch. 

THE COURT: Take Mr. Smith out of the courtroom. 

THE DEFENDANT: Thank you. You lying sack of shit.”

At which point the defense counsel continues his strategy.  Maybe one that makes tactical sense in light of both the evidence and all that's transpired, concluding with:

“You take your clients as you find them, okay. Despite his actions, despite his outbursts, despite his numerous problems, remember this is still a guy that it seems like the guy never caught—you can’t consider sympathy in your deliberations—but I can’t think of a time in this guy’s life when he caught a break. And I would like you to disregard his outbursts and think about the facts, that it took two people to hold and do the poking. And find him guilty of second-degree murder instead of first. Thank you.”

It's pretty clear from all this what went down, no?  Defendant insisted he was innocent, his counsel thought that was a terrible strategy, so defense counsel went with what he thought -- most likely, correctly -- made the most tactical sense notwithstanding the client's desires.

The only problem being that the Supreme Court's recent holding that you can't do that.

So reversal, right?

Not according to the Court of Appeal.

Justice Ramirez resolves this case just like the case on Friday:  By holding that there wasn't really a conflict in the evidence.  Even though it's crystal clear to me that there was.  Remember:  Defendant testified at trial that he was totally innocent, and yet, minutes later, you've got counsel contradicting that testimony and saying that his client's guilty (albeit of a lesser offense).  And when he heard his counsel conceding guilt, defendant immediately stood up and "objected" to that, insisting (yet again) that he was completely innocent.

How are these events even possibly consistent with one another?

Justice Ramirez has an answer.  He admits that, yes, at one point, defendant clearly wanted to insist that he was innocent (e.g., during his sworn testimony).  But Justice Ramirez insists that defendant must have changed his mind at one point -- namely, after the prosecution's opening argument.  Justice Ramirez appears to credit the defense counsel's testimony in this regard, saying:

"[Defense] counsel indicated that after the prosecutor’s argument, he informed petitioner that he believed there was no way the jury would buy his defense that he did not do it, based on all that had been said, and that he was going to go with the best defense he could. The record does not show petitioner made an express and unambiguous intent to maintain factual innocence at that time. Thereafter, defense counsel made his closing argument, conceding petitioner’s involvement in the murder, at which point petitioner objected."

Now, it's factually possible that's right.  It's possible that defense counsel told the defendant at that time that the "innocence" strategy was stupid and no longer viable, and that defendant at that point went along with that decision.  Truthfully, even on a stale paper record, it's very difficult for me to reconcile that fact with the undeniable reality that once counsel admitted for the first time during closing argument that his client was guilty (albeit of second degree murder), the client was both definitively surprised and went ballistic.  That certainly doesn't sound like someone who had agreed minutes earlier to that new strategy.  Sounds instead like someone who definitely did not agree with the strategy.

But we don't need to decide merely based on inferences like that, however persuasive.  Yes, Justice Ramirez is right that defense counsel says that he told his client about the change in strategy.  But Justice Ramirez's opinion also expressly states that "in fact, petitioner, in his declaration in support of his traverse, denies that defense counsel informed him of a proposed change of strategy during the prosecutor’s closing argument."  Which is certainly consistent with the events we subsequently see during defense counsel's closing, which which the defendant strenuously objects to what his counsel is saying to the jury.

So, yes, if the defense counsel is telling the truth, and there was agreement by the client that it was the best strategy to concede guilt, then the fact that the client later objected doesn't matter, and the habeas petition should be denied.  But if, instead, the defendant is right that there was never any agreement on this strategy -- e.g., that defendant always insisted (as he testified at trial) that he was innocent of the murder -- then the habeas petition should be granted.

A classic evidentiary conflict.  Which requires a hearing and a factual determination.  Because neither the trial court nor the justices on the Court of Appeal were there during the conversations between the defendant and his counsel.  Maybe (contrary to what defense counsel says) they never discussed at all the proposed "new strategy" of conceding guilt.  Maybe there was a discussion, but the defendant said "No freaking way; I'm innocent, and that's what I want you to argue."  Or maybe there was agreement after all.  You've got to figure out who's telling the truth.  Something we can't do on appeal.

So, again, maybe I'm a minority of one.  Maybe everyone else is happy -- just like every member of the panel in the Court of Appeal is happy -- deciding that, yep, the defense counsel is telling the truth here.  Just like in the case on Friday.

But, to me, you can't do that.  Particularly not here, when everything we can actually see (e.g., the outbursts during the closing argument) are totally consistent with defendant's version of the facts and his unwavering insistence on the same version of the facts he gave as his sworn testimony at trial.

Maybe I'm crazy.  But that's what I think.

Dorit v. Noe (Cal. Ct. App. - May 26, 2020)

Legal doctrine may be somewhat indeterminate, but it can nonetheless answer questions.  Today's opinion by Justice Brown is a good example.

The case raises the issue of whether filing a mandatory attorney fee arbitration proceeding can give rise to a malicious prosecution suit.  I hadn't thought about that issue before.  And even after Justice Brown posed the question, I still wasn't sure what the answer should be.  When someone files and loses a fee arbitration proceeding, can the prevailing party sue them for malicious prosecution if that filing was with malice and without probable cause?  The answer matters not only for which side gets to prevail on the merits, but also for which side gets to prevail on an anti-SLAPP motion, since (as the Court of Appeal holds) the filing of such a fee arbitration is an "official proceeding" under the anti-SLAPP statute.  So there's real money at stake.

As I said, I didn't have a view one way or the other on this issue.  Even after thinking about it a bit.  You could see arguments both ways -- a fact that highlights that legal doctrine doesn't necessarily give you definitive answers to lots of questions.

Nonetheless, after reading Justice Brown's opinion, I was totally persuaded.  Nope, no malicious prosecution suits.  For all of the plethora of reasons she explains.

It's not that I can no longer see the other side.  I still can.  But I'm persuaded that the position that Justice Brown articulates is decidedly superior to the alternative.  I concede that the procedural posture of this particular case -- an attorney who took $10,000 from a client to evaluate a medical malpractice lawsuit, didn't file anything, didn't return any of the money, defended a fee arbitration proceeding successfully, and then sued the client for malicious prosecution -- makes me somewhat inclined to the position advanced by the Court of Appeal, since an attorney defending against a fee dispute seems par for course and unlikely to require powerful tort remedies to sufficiently deter.  But even in the abstract, and even if you switch around the parties (and have the lawyer file a fee claim against a client), I agree that the point of these things is to get matters resolved quickly and easily, and that the spectre of malicious prosecution suits would only muck things up.

So a very well done opinion by Justice Brown.  A nice, definitive answer, and one that makes sense.

People v. Palmer (Cal. Ct. App. - May 22, 2020)

Because of all the initials for witnesses and crime victims, I had to literally draw a chart to try to figure out what was going on in this one.

Palmer and S.H. go to a bar, S.H. leaves, and Palmer flirts with C.S. and takes C.S. back to Palmer's room and they start having sex, except Palmer can't keep an erection.  S.H. meets A.K. after leaving Palmer, and then they too go back to Palmer's room and start having sex, at which point C.S. joins and has oral sex with S.H. while A.K. has sex with C.S. while Palmer watches (unhappily), at which point Palmer kicks everyone out (except S.H.).

Clear?

It took me a little while before I even figured out everyone's gender, much less who did what with whom.  (Except that, given the erection part of the opinion, I knew that Palmer was male.  Plus his name was Joshua.)

Anyway, all this happens at the Chadwick Hotel in San Diego, which I've driven past many times and in so doing often wondered who would ever stay there, since it looks like a flop house.  Now I know.

Only when I got halfway through the opinion did I realize that I already knew this story.  Because it was reasonably high profile down here in San Diego, since Palmer then killed S.H., stuck her body in a suitcase, left it out for the trash, and it was found by bystanders.  Made the news a lot.  Though the whole sex preclude was left out (or at least left out of what I recall).

Mr. Palmer ultimately gets convicted and sentenced to LWOP, which is hardly surprising, particularly once you read Justice Huffman's opinion and discover all the conflicting (and absurd) stories that the defendant told the police and allegedly wanted to introduce at trial.  Justice Huffman goes to great lengths to explain why the defense counsel's strategy -- which was to concede that Mr. Palmer killed A.H. but to claim that it was only manslaughter, in the heat of passion -- made total sense, as opposed to Palmer's (most recent) version of events, which no one in the universe was going to believe.  (One of the particularly bad pieces of evidence were the deleted videos on Mr. Palmer's phone that showed him digitally penetrating S.H.'s anus and vagina after she was deceased.)

So everything about Justice Huffman's opinion makes sense.

Except maybe one thing.

Mr. Palmer's basic argument on appeal was that he's entitled to reversal because he told his lawyer that he didn't kill S.H. at all and yet the lawyer nonetheless admitted at trial that Palmer killed her.  If so, yes, that requires reversal; a defendant is entitled to insist upon his factual innocence, and the lawyer can't take that decision away from him by arguing otherwise at trial.

Justice Huffman explains -- again, persuasively -- why Mr. Palmer's version of the facts is absurdly stupid, and why the defense lawyer (smartly) adopted the strategy she did.  I also can't find anything in the various transcripts quoted in the opinion that suggests that, before trial, Mr. Palmer ever told the court (in connection with potential Marsden motions or anything else) that he was insisting on his innocence and yet the lawyer was nonetheless going to admit to the murder at trial.  As far as I can tell, Justice Huffman's right that if there was a conflict like that, no one on the outside knew about it before Mr. Palmer was convicted.  Which lends a lot of credence to the view that Mr. Palmer -- who's very keen on telling different stories at different times -- simply made up the story about instructing his attorney to maintain his innocence rather than admitting that he killed S.H.  On that point, I feel very confident.  If you ask which person I believe -- the defense lawyer, who said that she followed Mr. Palmer's (ultimate) instructions, or Mr. Palmer -- I definitely believe the defense attorney.

So does Justice Huffman, who distinguishes the otherwise controlling Supreme Court case on this issue by saying:  "Unlike the defendant in McCoy, who emphasized, both before and during trial, that that he wanted to proclaim his innocence, there is nothing in the record that indicates Palmer told his trial counsel that he wanted to assert his innocence before or even during trial. At most, he wanted to argue that the victim died after a "taboo sex act" (erotic asphyxiation) went wrong. The record here shows that when his attorney told Palmer that the evidence did not support such a theory, Palmer relented, decided not to testify, and refused a Marsden hearing in the middle of trial when the court asked him if he wanted one."

But the thing is:  While that's probably true, it's not what the record unambiguously shows.  As the opinion itself concedes, "Palmer asserted that a month before trial, he told his counsel he wanted to testify. According to Palmer, counsel responded that it was his right to do so, but if he chose to testify, she was not going to help him, and it would be his job to defend himself. He felt she had used coercion and fear to force him to relinquish his right to testify and tell the truth."  So it's at least Mr. Palmer's story that he wanted to testify and "tell the truth [sic]" about the alleged non-deliberate killing, his lawyer refused to permit him to do so (saying she wouldn't help him if he did so), so his desires to protest his innocence were frustrated.

Now, again, I have little doubt that the defense attorney's version is more credible, and that (as the opinion recounts) "In response to Palmer's accusation, defense counsel denied that she told Palmer she would not help him if he wanted to testify. Instead, she asked Palmer to give her notice if he planned to testify so she could prepare how best to handle it. According to counsel, Palmer told her he would think about it and then called her later to tell her he was going to take her advice and not testify. At that time, she advised him again that it was absolutely his right, and although she was in charge of strategy decisions, whether he testified at trial was not one of them."  Perfectly fine and perfectly ethical.

But it seems to me you have to decide who's telling the truth at an evidentiary hearing, no?  Not just decide the thing on a stale paper record.  Justice Huffman's opinion correctly notes that "Palmer only complained about defense counsel's representation after the jury returned a guilty verdict."  Yes, it's true he only complained about it publicly afterward.  But if his version of events is believed, he told his defense attorney privately about his desires way beforehand.  Just because someone only tells the world about something later -- whether it's trial strategy or sexual harassment or whatever -- doesn't mean it didn't happen, or that s/he didn't tell someone different (privately) earlier.  Similarly, yes, Justice Huffman is right that Mr. Palmer "admitted to telling his attorney multiple stories about what happened with the victim," and that he "conceded that he was not consistently telling his attorney that he was innocent and wanted to present an innocence defense."  But that you lied to your attorney at one point in no way waives your right to insist upon your innocence at trial.  Maybe, for 12 months, I consistent tell my attorney:  "Yes, I deliberately killed her, darn it, wish I hadn't."  And maybe, two months before trial, for the first time, I suddenly tell my attorney:  "Wait.  No.  I totally did not kill her.  I was lying to you before.  I want to assert my innocence at trial."  The attorney can no way at that point say:  "Tough.  You once told me you killed her.  So I'm going to plead guilty for you (or admit at trial that you killed her)."  You -- the defendant -- get to decide whether or not to concede your guilt.  Maybe -- probably -- you were lying the second time.  But maybe you were lying the first time.  Regardless, whether you killed the person is something the jury gets to decide, not your own attorney.  If you want to say you are not guilty, fine, that's your right.  Good luck with that.  You're entitled to present that defense at trial, regardless of whether your lawyer thinks that's a great idea.  It's your life on the line, not hers.  (Put to one side whether the lawyer can put you on the stand to testify, since that's neither the issue here nor do we need to get into the thorny issue of how one "knows" that testimony is perjured or a defendant's right to testify via a narrative.  The defendant indisputably still gets to control whether he pleads guilty and/or have his counsel admit the offense at trial.)

So, yes, the Court of Appeal is right that "this is not a case like McCoy where the defendant emphatically insisted he was innocent and consistently told his attorney to argue such at trial."  But the rule is not that you have to "emphatically" insist on that right nor advocate for it "consistently".  Yes, in the end, you've got to direct your attorney to do something, in terms that are not equivocal.  But if I say, definitively, "No, seriously, I don't care what I said before, I'm telling you now:  Don't admit that I killed her at trial," then that's what you've got to do.

And that's what Palmer says that he said.  We certainly have a lot of reasons to disbelieve him.  But I don't think that either the Court of Appeal or the trial court can properly decide who's telling the truth without putting both of the relevant witnesses on the stand and listening to their stories under oath.  An event that, as far as I can tell, has not yet transpired.  And which means we can't say for certain which version of the facts is right.

I'd be fine if the opinion said "So we can't tell what really happened here, since there was no evidentiary hearing, so we'll remand for one," or maybe even if it said "We're not saying what actually went down, for that, you can assert a claim on state or federal habeas, in which you'll be entitled to an evidentiary hearing, but for now, on appeal, you can't get relief."  But the opinion casts itself much more categorically than this.

Which accurately describes -- very accurately, I suspect -- how any evidentiary hearing will almost certainly ultimately come out.

But you're entitled to one before someone says that what you've said is untrue and hence you're in prison for the rest of your life.  Because if -- a big if -- what Mr. Palmer says is actually true was true, he's entitled to a trial at which his counsel does not concede that he deliberately killed the victim.

Changsha Metro Group Co. v. Xuefeng (Cal. Ct. App. - May 20, 2020)

I'm incredibly frustrated by this opinion by Justice Miller.  Profoundly, deeply, irretrievably frustrated.

Let me say at the outset:  Yes.  Yes, yes, yes, yes, yes.  Defendants filed a frivolous anti-SLAPP motion.  The trial court accordingly awarded $61,915 in fees to the plaintiff pursuant to the anti-SLAPP provisions that affirmatively require an award of fees in such cases.  Yes.  Exactly right.

So when Justice Miller affirms that award, I'm totally on board for the result.

But, as to how he gets to that result in the opinion:

No, no, no, no, no, no, no.  Deeply and profoundly frustrating.

I totally agree with him on his key practical and doctrinal point:  That you can't require the usual separate motion and 21-day "safe harbor" provisions of CCP 128.5 to frivolous anti-SLAPP motions.  The timing and structure totally doesn't work.  It'd completely conflict with the purposes as well as the manifest intent of the statute.  Exactly right.  It's also, parenthetically, not what's done in practice.  Just like defendants often ask for (and receive) their attorney's fees in the anti-SLAPP motion itself -- no separate motion required (though you can file one after you prevail on the motion if you'd like) -- so too to plaintiffs often ask for (and receive) their attorney's fees as a result of the anti-SLAPP opposition itself.  No side has to give the other one an opportunity to "withdraw" their papers (the complaint or the motion), and as long as the other side gets to be heard (which they do), either side can ask for their fees on an anti-SLAPP motion in their underlying papers.  No separate motion is necessary.

On these points, again, Justice Miller seems exactly right to me.  That's the way the world both is and should be.

The problem is this:  Section 425.16(c) of the anti-SLAPP statute says that a plaintiff can recover (i.e., a court can award) its fees in response to a frivolous anti-SLAPP motion "pursuant to Section 128.5."  That's the usual sanction provision in the CCP.  The thing is:  That statute requires that any sanctions be sought (1) in a separate motion, and (2) with a 21-day safe harbor period.  Which, as I've mentioned before, totally doesn't work in connection with a frivolous anti-SLAPP motion.  Yet here we have a defendant saying, basically, "You can't sanction me for my frivolous anti-SLAPP motion because you didn't comply with CCP 128.5, since you didn't give me 21 days notice and make a separate motion, so ha ha ha, I get away with it."  Which, if true, is what virtually every frivolous anti-SLAPP motion filer is going to do.  We've already got a problem with frivolous anti-SLAPP motions given the huge procedural benefits (discovery stay, automatic appeal, etc.) arising from such requests.  We don't need to make such motions even more palatable by making it virtually impossible to sanction 'em.

So, on that, right on, Justice Miller.  Those provisions don't apply.

But why not?

Here's where I think the Court of Appeal goes completely off the rails.

Justice Miller says:  "Ha!  CCP 128.5 has two different provisions.  The first, paragraphs (a) and (c), say that you can award attorneys fees for frivolous papers if such a request is made in the moving or opposition papers of a brief.  It's only the second provision, paragraph (f), that contains all those pesky requirements about having to file a separate motion, have a 21-day safe harbor period, etc.  So the trial court here just followed the first of those provisions -- (a) and (c).  So there!  No safe harbor or separate motion requirement applies."

Yes, if true, that'd solve the problem.

But I'm profoundly confident it's not.

First off:  To my knowledge, no one, ever, has read the statute this way.  The cases that say that you've got to file a separate motion and follow the safe harbor provision under Section 128.5 are legion.  And I need not even mention the massive legislative history in this regard, which makes it crystal clear that you've got to follow the separate motion and safe harbor provisions whenever you ask for fees under Section 128.5.  There simply aren't two different provisions, one of which requires a safe harbor separate motion and one of which doesn't.

And why would there be?!  What would possibly be the point of requiring a separate motion and safe harbor in paragraph (f) if a party could get around it by simply filing a request for fees in response to a frivolous request pursuant to paragraphs (a) and (c), which purportedly contain no such provision?

To make things worse, Justice Miller's analysis also appears internally inconsistent.  He says:  "Thus, section 128.5 provides two procedures for an award of attorneys’ fees: (1) request attorneys’ fees in moving or opposing papers and allow an opportunity to respond (§ 128.5, subds. (a) & (c)); and (2) after obtaining attorneys’ fees per subdivision (a), request a sanction of attorneys’ fees by (a) filing a separate motion, and (b) providing a 21-day safe harbor."  What?!  Why would you allegedly "obtain" fees under section (a) and then, "after obtaining attorneys' fees per subdivision (a), [then] request a sanction of attorneys' fees" under (f) by doing the separate motion and safe harbor thing.  You already got your fees, right?!  Why would you be filing yet another motion -- much less one with all of those procedural hurdles you circumvented the first time by moving under (a)?

Last -- but definitely not least -- the Court of Appeal's analysis is inconsistent not only with the entire structure and purpose of CCP 128.5, but also its text.  Justice Miller says that you can ask for a 128.5 award under either (a)/(c) or (f).  You choose.  But paragraph (f) expressly starts out by saying that "Sanctions ordered pursuant to this section shall be ordered pursuant to the following conditions and procedures," and then lists (among other things) the separate motion and safe harbor rules.  This plain language says that any sanctions under this sanction -- i.e., anywhere in CCP 128.5 -- have to follow these particularized rules, not just that sanctions under this paragraph have to follow the rules.  And, as I noted earlier, that's indeed how this language has been interpreted in every single prior case of which I'm aware regarding 128.5 requests:  You've got to follow the safe harbor and separate motion requirements for any party-sponsored request.  Period.  And, yet again, the legislative history on that point is pretty darn clear:  that's what the Legislature definitely wanted.

So it seems to me that it's just flat wrong that there are purportedly two independent provisions of CCP 128.5 under which you can ask for your attorney's fees.  Moreover, such a holding by the Court of Appeal is not only wrong, but also profoundly dangerous.  If left standing, it would abrogate the deliberately intended separate motion and safe harbor rules not only in anti-SLAPP cases, but in all other cases as well.  From now on, I'll just plop my request for attorney's fees into the last paragraph of my opposition papers, claiming that the motion is frivolous, and say that's okay because I'm doing so pursuant to (a) and (c), not (f).  Yes, that's the practice that we used to employ.  But that's also the practice the Legislature undeniably intended to stop.  Today's holding, if left undisturbed, would inexplicably bring it back.

In short, I'm confident that the Court of Appeal's analysis is wrong here.  Seriously and critically wrong, with potentially disastrous results.

Though that leaves us with the question:  So how do we get to the right result here?

Which only adds additional frustration.

Because, again, I see why Justice Miller adopts the analysis he does.  That way, this case comes out the way it should -- with the Section 128.5 procedures inapplicable to anti-SLAPP cases, since they don't fit there.  So, yeah, I can see why that might push someone to find "two different procedures" in Section 128.5 as a potential way out.  Even though, to me, the statute no way in fact permits us such an out.

So what to do?  Is the plaintiff here really right?  Do we really have to follow the safe harbor and separate motion rules in response to frivolous anti-SLAPP motions?  Because, if so, that's a fairly bad world too.  Maybe not as bad as gutting the overall sanction protections in 128.5.  But nonetheless pretty darn bad.  Is that really where we're left.

First impression:  Maybe.  Maybe it was a legislative error to say that frivolous anti-SLAPP motions should be sanctioned "under Section 128.5" -- they didn't anticipate that this would gut the ability to sanction and thereby deter such requests.  Maybe we have to so hold, at least given the facial clarity of the text that says that, yes, such awards are indeed governed by CCP 128.5.  That's definitely bad for the righteous party here.  But we can take some solace in the fact that, virtually without a doubt, the Legislature would promptly respond to such a ruling by amending the statute.  Which we could even suggest in our opinion.  Because, yes, in truth, that should happen.

But I think it's also possible that we might be able to reach the same result that Justice Miller (and I, and the rational world as a whole) prefers in a different, but plausible, way.

Because, yes, the Legislature made an error when it stated that frivolous anti-SLAPP motions are subject to the provisions of Section 128.5.  But only sort of.

You see, at the time the Legislature passed the anti-SLAPP statute (in 1992), and even when they later amended the statute (in 1993) to make mandatory (rather than discretionary) an award of fees for frivolous anti-SLAPP motions, CCP 128.5 didn't yet have the safe harbor and separate motion requirements.  That's why the Legislature didn't think it's was a problem.  Back in those days, if you wanted sanctions, you just plopped 'em in your moving or opposition briefs.  No biggie.  So all the problems that Justice Miller (rightly) notes in applying Section 128.5 to anti-SLAPP motions didn't exist when the Legislature passed the relevant provisions of the anti-SLAPP statute.

I don't want to bore you with the details of the numerous (and incredibly complicated) revisions to the California sanction provisions, but suffice it to say that, after the anti-SLAPP motion was passed, in 1994 and beyond, that's when the Legislature started its never-ending tinkering with CCP 128.5 to make it more in line with the recent changes to Rule 11, the federal sanction provision (then less in line, then more in line, then sort of in line, etc.), including but not limited to the separate motion and safe harbor provisions.  That's what caused the problem.  When the Legislature was futzing with the various changes to the basic sanction provisions, I'm quite confident it didn't think about how those changes might affect a residual clause in the anti-SLAPP statute that cross-referred to them.

Hence the problem.

Now, again, maybe that's the Legislature's problem.  One they can fix.  We simply follow the statute as written, and then they can amend it to correct the injustice that we've done in a particular case.

Or maybe not.

It occurs to me that a different way out of this pickle is to rely on legislative intent to hold that, given the structure and practical effect of applying the safe harbor and separate motion provisions to anti-SLAPP motions, the Legislature only intended to apply the provisions of 128.5 that existed at the time to such motions.  And since, at the time, no separate motion or safe harbor rules applied, those don't apply to frivolous anti-SLAPP motions.  End of story.

Now, admittedly, we typically apply statutory cross-references across the board, and say that when the one statute changes, so necessarily does the other.  But I'd likely find supportable an argument that this principle doesn't/shouldn't apply when those other statutory changes conflict with both the structure and intent of the underlying statute itself.  As they do here (and as Justice Miller quite ably demonstrates).  So, yes, Section 128.5 changed, but given the requirements of the anti-SLAPP statute itself, those changes didn't affect the original intent or effect of the anti-SLAPP provisions.

That's a plausible result.

It's even more plausible because the Legislature's particular amendments to Section 128.5 would in fact have made it absurd to apply those same changes to the anti-SLAPP statute.  To go through all those changes and their effects would make this post even longer and more obtuse than it already is, but to mention just briefly, at various times, the Legislature (1) enacted different statutes (e.g., 128.6 and 128.7) to replace 128.5, (2) repealed 128.5 entirely, and (3) made 128.5 not applicable at all to various cases filed at various times -- e.g., several cases hold that 128.5 doesn't apply at all to any case filed prior to January 1, 2015.  To apply those amendments to the anti-SLAPP statute would be totally crazy, even though that's what the text ("pursuant to Section 128.5") facially requires.  For example, it would mean that we couldn't sanction frivolous anti-SLAPP motions filed before January 1, 2015 at all, since CCP 128.5 didn't exist at that time (more accurately, didn't apply in any of those cases) -- a result undeniably contrary to legislative structure and intent.  So too here.

So, in short, I think there's probably a way to reach the result that both Justice Miller and I prefer, and one that makes the world a better place.

It's just very much not the approach that the Court of Appeal takes here.

So I'd amend this opinion.  Or depublish it.  Because I'm happy with the result.  But very much feel a different way about the doctrinal moves it takes to get there.

POSTSCRIPT - Oh, and I meant (but forgot) to mention in this overly-long post that the caption also recites that counsel for appellant in this civil dispute is "Thomas Ogden, under appointment by the Court of Appeal."  I suspect that's a mistake.  It's very rare for counsel to be appointed in a regular old civil (money) dispute involving private parties, and even though I've found one case in which Mr. Ogden was apparently appointed pro bono counsel in the Ninth Circuit, I didn't readily find any cases in which Mr. Ogden was appointed by the Court of Appeal -- nor does the docket to the present case reflect any appointment of counsel by the Court of Appeal.  (Plus, yesterday's unpublished opinion in this same case, which is about the merits of the underlying anti-SLAPP appeal, just lists Mr. Ogden as regular old counsel, not appointed counsel.  So it seems like that's another, very minor, mistake.)

People v. Valles (Cal. Ct. App. - May 19, 2020)

There's only a single published opinion from the Ninth Circuit and California appellate courts today.  One that the Court of Appeal's website inexplicably lists as "People v. Dueñas" -- which is ironic, as the opinion (which is actually People v. Valles) is one of the legion of cases in which the various justices indeed spar over whether the Court of Appeal's prior decision in People v. Dueñas (currently on review in the California Supreme Court) is right or wrong.

So add this opinion to the list.  But let's at least label it with its actual name:  Valles.

The most interesting part of today's opinion is not really the lingering Dueñas dispute, but rather Justice Menetrez's concurring opinion.  Which definitely begins with a bang:

"The opinion authored by Presiding Justice Ramirez is not a majority opinion. No member of the panel joins the analysis in Part 2 of the Discussion concerning People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), though we are unanimous as to the result. I feel compelled to point this out because otherwise readers could easily be misled. Only by reading the disposition and understanding its import (or by noticing that no one else has signed Presiding Justice Ramirez’s opinion) would a reader be able to determine that not everything in Presiding Justice Ramirez’s opinion is the opinion of the court. Given that Court of Appeal opinions (both published and unpublished) are often read in snippets online, dispositions are rarely read by anyone but the parties, and signatures are probably read even less, the potential for confusion here is far from trivial."

That's definitely making a point with a sharp stick, eh?

(Personally, I take no umbrage at Justice Menetrez's statement that Court of Appeal opinions "are rarely read by anyone but the parties," but for the record, there's at least one person other than the parties who reads every single one of the published ones; e.g., me.  So never fear that literally no one is going to read the thing other than the people who really care only about the result (e.g., the parties).)

Justice Menetrez not only wants to make clear the exact holding of the case -- something that you see other justices (in dissent or otherwise) also talk about -- but also seems to want to express a decent amount of displeasure at how the panel elected to publish the opinion.  A point which, again, he makes without holding much back:

"In addition, Presiding Justice Ramirez is publishing his Dueñas analysis, which is not joined by any other member of the panel and conflicts with this division’s published precedent in People v. Jones (2019) 36 Cal.App.5th 1028, 1031-1034 (Jones), which held that a Dueñas challenge to a pre-Dueñas minimum restitution fine is not forfeited by failure to raise it in the trial court. Presiding Justice Ramirez’s opinion does not explain why he is declining to follow Jones; the opinion does not even acknowledge that he is doing so. Moreover, in a footnote within his Dueñas analysis, Presiding Justice Ramirez erroneously refers to his own opinion as “the plurality opinion.” (Lead opn., ante, at p. 11, fn. 2.) “An opinion is characterized as a plurality opinion when it has more signatories than any other opinion supporting the judgment in the cause, but less than a majority.” (Cal. Style Manual (4th ed. 2000) § 1:10, p. 13.) Presiding Justice Ramirez’s opinion has the same number of signatories as every other opinion in this case (namely, one), and every opinion in the case supports the judgment (on which we are unanimous). In sum, Presiding Justice Ramirez is publishing a dissenting view on the Dueñas issue that is inconsistent with our division’s published precedent, and he is presenting it as a plurality opinion.

Justice Miller is the only member of the panel who is in the majority on every issue, both reasoning and result. Our division’s policy (as well as common sense) dictates that Justice Miller should therefore author the majority opinion. But my colleagues have chosen a different path, with Presiding Justice Ramirez authoring a lead opinion that expresses a minority analysis of the Dueñas issue."

You sense a keen sense of frustration here, no?

To a degree, all this is much ado about nothing, since the underlying issue (Dueñas) is one on which that the California Supreme Court will have the final say anyway, and nothing the Court of Appeal says on the matter (and certainly nothing in this particular opinion) will change that or (presumably) have any practical effect whatsoever on what the law is or becomes.

But, even then, sometimes people get very testy about process.  Even when it doesn't practically make any difference.

It's like what they say about academic faculty meetings.  The truth of which I can readily attest:

They're so rancorous precisely because nothing that transpires therein matters in the least.

POSTSCRIPT - And, right after I hit the "submit" button on this thing, the Court of Appeal changes the caption from "Duenas" to "Vallas".

Estate of Elmers (Cal. Ct. App. - May 18, 2020)

When you read cases from the nineteenth century, they're replete with legal formalism and focus on hypertechnical distinctions that are often found to be dispositive.  I'm often left with a sense that the judges of that era were trying their best -- were doing the job that they believed they were required to do -- but that the result of those cases were often wildly inequitable as a result.  Go ahead and pick up an opinion from the 1800s and you'll see what I mean.  The kind of "justice" rendered in those types of cases is a far cry from what we see in the modern era.  That's an area in which the justice system has undeniably improved over the last century or two.  Modern cases follow rules and doctrine, of course (just like in the old days).  But we typically follow and establish rules for a reason, and end up (more often than not) with a fair and equitable result.

Then there's this opinion from today.  Which reads more like something from 1820 than 2020.

I'm not saying that Justice Stratton fails to follow the appropriate rules.  By all accounts, she's a conscientious jurist, and there's no doubt that this opinion attempts to follow the legal principles as Justice Stratton sees them.

But the resulting unfairness that arises from this hypertechnical doctrinal focus is striking.  Which is something you don't typically see -- or at least see so palpably -- in modern cases.

Here's the scoop:

In 1991, Norbert Eimers makes a common type of testamentary trust, which essentially says that when he and his wife both die, all their money goes to their surviving kids (in trust).  Makes sense.  What about when the kids who get the money then die?  No problem.  The trust says -- again, this is common -- that the kid can specify in his or her will where the money goes.  (Which makes sense; it's basically their money.)  So if they want to give it to a friend, or to charity, or whatever, go ahead.  But if the kid doesn't specify where s/he wants the money to go, then it goes to the kid's children (if any), and if there aren't any such children, then it gets split up among Eimers' surviving kids and grandkids.

Totally common.  Totally fair.

Mr. Eimers dies in 1992, and his wife dies in 2011, so their kids split the money.  So far, so good.  One of those kids is Tim Eimers.  Tim doesn't seem to have a spouse or children, so in 2013, he writes out a holographic will that gives all his money -- expressly including the trust money from his parents -- to Charles & Caryn Saletta.  His intent couldn't be clearer.  His handwritten will says:

“I Timothy William Eimers am writing this document as my Last Will and Testament. I am doing this of my own free will and of sound mind and body. “To Charles J. Saletta and Caryn Saletta I hereby leave my shares of the Norbert Theodore Eimers Family Trust. I also leave all my other property and any funds I have.”

Okay, then.  No problem.  It's essentially his money, his parents said he could give it to anyone he wanted, and he crystal clearly gave it to Mr. and Mrs. Saletta.

But in the middle of the 30 page trust document that Mr. Eimer's prepared, there's a provision that says "Upon the death of a child, any share held in trust for the child’s benefit . . . shall be distributed to or for the benefit of such one or more persons or entities, and on such terms and conditions, either outright or in trust, as said child may provide and appoint by will specifically referring to and exercising this power of appointment."  (Otherwise the money goes to the kids and grandkids.)  Remember:  There's zero doubt that Tim wanted to give the Salettas the trust money, and he even specifically gave them "my shares of the Norbert Theodore Eimers Family Trust" in his holographic will.

But the fine print of the trust document says you've got to specifically refer to the "power of appointment."  Which -- not being a lawyer, and in the midst of writing a handwritten will -- Tim didn't clearly do.  He just said he's giving them the money, not that he's "appointing them" to get the money.

Now, in the modern era, you'd expect that we'd have a doctrine that would deal with this problem.  Because we want to do justice.  We'd call it substantial compliance.  We'd say that Tim "implicitly" exercised the power of appointment.  We'd say that the greater (giving them the $) included the lesser (appointing them).  There's a million different doctrinal ways that we could end up doing the right thing here.  One of which -- the one at issue in this appeal -- is for the Saletta's to file a petition to amend the holographic will so that it adds twenty six characters and hence reads "To Charles J. Saletta and Caryn Saletta I hereby leave my shares of the Norbert Theodore Eimers’ Family Trust under the power of appointment. I also leave all my other property and any funds I have.” (Words added.)  That's clearly what Tim was trying to do, after all -- everyone admits that.  So let's achieve justice and do what both Mr. Eimer as well as Tim wanted -- let him give the money to the Salettas.

Nope.  The Court of Appeal doesn't let him.  Those four words weren't used, so we can't do what we know the parties wanted.  The Salettas get nothing and the money goes to people who already got their full share under the will (Tim's siblings and nieces and nephews).

One can direct the critique of this result in any one of a number of places.  You can blame the Probate Code for being absurdly (and meaninglessly) strict.  Maybe we should amend it.  You can blame the authors of the first opinion from the Court of Appeal that held (in an unpublished disposition) that Tim's holographic will didn't satisfy the statute.  Maybe that was wrong.  And you can blame Justice Stratton and the panel in this opinion that held (in a published disposition) that a trial court hearing a petition to amend a holographic will can add a plethora of different words to such an instrument but not these particular twenty six characters.

Maybe only one of these is to blame, or two of them, or all of them.

But someone is indeed to blame.  Because this isn't a just result.  It's not justice.  It's not what we expect from a modern, enlightened set of legal principles.

It's what you'd expect to see in 1820.  Not today.

Sosa v. CashCall, Inc. (Cal. Ct. App. - May 13, 2020)

This is why the are so few opinions about discovery in the Court of Appeal.

It's not that discovery is unimportant; it is.  It's also not that discovery disputes are rare; indeed, they are ubiquitous.

It's simply that most discovery disputes are relatively moot once the case gets to trial.  And, even if they're not moot, the Court of Appeal typically just doesn't care.  It doesn't feel like getting down and dirty into the pedantic details of who produced what and when and why.  Which means, in turn, that most parties don't raise routine discovery disputes on appeal, and when they do, they lose.

This case involves a lender (CashCall) who accesses credit reports about consumers.  Typically, in California, you're not allowed to do that without the consumer's consent.  Invasion of privacy and the like.  But there's an exception.  If you're making a "firm offer of credit" to the consumer, it's okay to pull their credit report in advance.  Otherwise, nope, can't do it, and you get spanked for statutory penalties of up to $2500.

It's undisputed that CashCall pulls credit reports of consumers without their consent.  For example, in April 2015 alone, it pulled nearly 370,000 credit reports.  In October 2015, it pulled another 250,000 reports; in March 2016, it pulled over half a million reports; and in March 2017, it pulled another half a million reports.

That's a lot of credit reports.

But CashCall said it was doing to to make a "firm offer of credit" to those consumers.  CashCall says that it selected a credit score range, and then got a million-plus names of consumers who were in that range (e.g., tolerable but not great credit), and sent all those consumers a "firm offer of credit" that said that CashCall was willing to make them a loan of "up $10,600" or so.  Hence, it says, what it did was legal.

There's some evidence that CashCall is telling the truth.  It almost certainly was willing to make loans to at least some of these people it contacted -- otherwise, why contact them?  But was it a "firm offer of credit" to everyone?  That's much less clear.  The letters it sent expressly said that the loan that was being offered was "not guaranteed" and depended on "certain criteria" in their credit reports, and that if those (unstated) "criteria" were no longer met, no loan would be offered.

So plaintiff sues.  She says that CashCall was just fishing, which isn't allowed.  Yes, you can access credit reports if you're making a "firm" offer of credit.  But, she alleges, that's not what CashCall was doing.  It was sending out letters to lots of people, she says, to whom it wouldn't actually make a loan of any type or amount, and that doesn't satisfy the statute.

Defendant eventually moves for summary judgment.  Its motion encloses examples of some of the letters it sent out (with the "no guarantee" and other language).  And it also includes a conclusory declaration of one of its employees that said that CashCall intended by its letters to make a "firm offer of credit" to each recipient.  A nice little declaration that simply mimics the language of the statute.

Here's where the discovery dispute comes in.

Plaintiff previously sent out interrogatory that said, essentially, "Of the million-plus people whose credit reports you accessed and to whom you sent these allegedly 'firm offers of credit,' how many of them actually took out a loan from you?"  Defendant refused to respond, plaintiff filed a motion to compel, and the trial court denied the motion, finding the information "irrelevant" to the case at hand.

Which it's obviously not.  Let's say they sent out a million letters and, in response, made a million loans.  That's strong evidence that they were making "firm offers of credit," no?  Similarly, let's say they sent out a million letters but only actually made a single loan.  That would in turn provide some evidence that they didn't really intend to make loans to everyone they contacted.  It wouldn't be conclusive, evidence, of course.  But it'd definitely be a disparity that required explaining.  It'd be some evidence that these allegedly "firm" offers of credit weren't so firm after all.

And, presumably, you'd follow up on whatever discovery response you received.  Let's say CashCall said in response "We sent 1.2 million 'firm offers of credit' and made 26,345 actual loans."  Now that you know how many loans they got, you'd then ask "Okay, so you made 26,345 loans.  How many 'Yes' answers did you get to your letters applying for those loans?"  If CashCall responded:  "We got 26,392 'Yes' answers," and we know they made 26,345 loans, well, shucks, then it looks like this case is a loser, and their alleged "firm offers of credit" really were firm offers, with just a small minority of loan applicants (47 of 26,392) falling out, presumably because some material change had transpired (a bankruptcy filing, a credit card default, a foreclosure, etc.) between the mailing of the letter and the "Yes" received in response thereto.  By contrast, if we know they made 26,345 loans, and then they tell us "We got 97,358 loan applications in response to our letters," well, now, the lawsuit is looking very good.  Because defendant's going to have a really hard time explaining why it made purportedly "firm" offers of credit and yet only actually funded a fairly small fraction of those loans.  That'd be an awesome set of facts for plaintiff.

Which is precisely what the majority opinion here holds (albeit in less excruciating detail than I've just articulated above).  Justice Moore says that you can't deny the plaintiff an opportunity to obtain relevant evidence in discovery and yet then, on summary judgment, dismiss the case because plaintiff doesn't have the type of evidence that you prevented them from obtaining in discovery.  Not fair, not equitable, doesn't work.

Which seems exactly right to me.  Totally correct adjudication.

Yet Justice Aronson dissents.  And his dissent proves precisely the point that I made at the outset of this post.

Because Justice Aronson's dissent is far from frivolous.  He says, basically:  "Wait a minute.  We review discovery rulings for abuse of discretion.  At worst, this one was close.  There were lots of reasons the request might not be all that relevant.  So it wasn't necessarily an abuse of discretion, so we should affirm.  Plus, even if it was, for discovery disputes, a plaintiff can only obtain a reversal if she establishes that the absent discovery more likely than not would have changed the result.  Which she can't do here, because there's no evidence that the discovery answer would have actually proved her case for her."  (Justice Aronson makes some other points as well, but I want to focus on the most doctrinally significant ones.)

Here's the thing:  Justice Aronson is right.  (At least in part.)  We do review these things for abuse of discretion.  Which is an awfully high standard.  Particularly when you're reading an expansive record on appeal and aren't all that interested in doing associate-level discovery work.  More critically, here, even if you're certain that the trial court has erred -- as I am -- how exactly are you supposed to prove that the error isn't harmless.  The whole point is that we don't know what the answer is.  If we don't know what their answer would have been, and some conceivable answers would have helped us but some possible answers would have hurt us, how the heck are we supposed to establish prejudice?  the fact that they didn't answer stops us from establishing the very thing that we're supposed to show?

Could plaintiff have propounded a narrower interrogatory?  Sure.  It could (and perhaps should) have simply asked (in essence) "What percentage of the positive responses to your alleged 'firm offers of credit' actually resulted in a loan?"  That's clearly relevant information.  It instead elected to obtain this information in two parts; first, by asking for the numerator (the number of people who got loans), and then (presumably) asking for the more discrete denominator (the number of people who applied for them -- as opposed to the number of people who got letters, which we already know) later.  Once the trial court refused to give you the numerator, however, there's no point in asking for the other figure (the denominator), since you can't construct the relevant figures at that point anyway.

So, yes, in the end, the majority actually reverses the decision below, in a rare victory based upon the denial of relevant discovery.  But that there's a dissent, that the dissent makes decent arguments, and that it takes a case like this one to actually get a reversal proves the point.  It's extraordinarily difficult to get relief on appeal for even the most egregious discovery error below.  Total longshot.

Now, between you and me, while I'm extremely happy that the opinion comes out the way it does, which I believe to be the right result, I suspect that CashCall will in fact prevail on remand.  (Which, in my mind, only makes it even sillier not to grant the discovery that plaintiff requested below.)  The rates that CashCall offered in their letters were both (1) in a range, and (2) shockingly confiscatory.  CashCall was offering to make loans at an APR that, the letters said, "range[] from 99.75% to 184.36%."  I think that CashCall is probably telling the truth when it says that it was indeed willing to make a loan at such an absurd rate to virtually anyone stupid (or desperate) enough to request it.  And in those rare occasions when it wasn't willing to act as a legally-permitted loan shark, I suspect that there were, indeed, likely good reasons for this unwillingness.  So, yeah, in the end, I think CashCall did probably make "firm" (though abusive) offers of credit.

But the point of discovery is to allow the other side to test the veracity of your self-interested factual assertions.  And that didn't happen here.  Hence the reversal to give the plaintiff another shot.

Even if one internally suspects (as I do) that the result will probably end up the same.

Zieve, Brodnax & Steele LLP v. Dhindsa (Cal. Ct. App. - May 13, 2020)

On one level, of course Justice Franson is right in this opinion.  You've got a property owned by multiple people on which there's a first mortgage (taken by all the owners) and then you've got a second mortgage that was taken out on the property by only 75% of the owners.  You can do that -- the 75% owners can (obviously) only encumber their share of the property, the encumber it they have.

Eventually the property goes into foreclosure and gets sold, and the proceeds are enough to pay off the first mortgage entirely (so that lender gets its money) but aren't enough to pay off the second.  So which of the following do you do:

(1) Give all the remaining money to the lender on the second mortgage.  Or
(2) Give 75% of the remaining money to that lender and 25% to the remaining owners who aren't liable for the second mortgage.

The answer, to me, is obviously (2).  My co-owners can't encumber my share.  So I don't care how much my idiot co-owners (or their lender) decided to encumber their portion of the property.  I'm still entitled to my 25 percent.  So if the property's worth $100,000, my share's worth $25,000, and that's how much I'm going to get once it's sold.  If my co-owners took out a $500,000 loan (or whatever) on their share, that's between them and their lender.  I get my $25,000, and the lender gets $75,000.  That is clearly the right result.  It's the lender's bad -- not my bad -- for loaning out more than the relevant share of the property was worth.

And that's got to be the law.  Otherwise, a 1% owner of a piece of property worth $1 million (so his share's only worth $10,000) could take out a $1 million loan all for himself and, boom, suddenly my 99 percent is worthless because in foreclosure the lender gets all $1 million and I get nothing.  Not equitable, and not the law.  As the Court of Appeal entirely correctly holds here.

All of this seems so obvious to me that I wondered how the trial court could possibly have gotten it wrong.  But then I read the facts, and understand (I think) why the trial court held the way it did, notwithstanding the fact that its approach remains wrong.

The slight complexity arises because the 25 percent "owner" here came to his share in an unusual (and arguably inequitable) way.  It's not that the 75% owners took out a loan totally unrelated to the 25% owner.  It's that the 75% owner (and the lender) thought they were 100% owners.  Here, the property was originally purchased by Father and Brother, 50/50.  But, later, Brother gave his 50% of the property to Father and Son equally -- which means Father then owned 75% and Son owned 25%. Son's at that point two years old.  Then, eight years later, Father and Son give back the whole of the property (all 100%) to Brother.  And, six years later, Brother -- who now owns 100% of the property -- takes out the second mortgage.

Except for one thing.  Son was only ten years old when he transferred the property back to Brother (his uncle).  But minors can't do that.  Not without jumping through some hoops that didn't transpire here.

Which is why Son owns 25% of the property.  Which, in turn, means that -- pursuant to the general rule -- Son gets his 25% of the remaining proceeds.  Even though that screws the lender a bit, who thought that Brother owned the whole thing (pursuant to the transfer).  And serves to benefit Son (and, perhaps derivatively, Father and Uncle) inequitably.

And that's why I think the trial court wasn't so keen on giving the 25% "owner" his share here.  Admittedly, I'm reading between the lines.  But I think accurately.

The Court of Appeal nonetheless correctly applies the actual law.  Son's a 25% owner.  So he gets his 25% of the remaining money.  That's hoses the lender a little bit, sure.  But next time it'll presumably pay a bit more attention to the preceding transactions involving the property to make sure that they don't involve a minor.

Right rule.

People v. Seo (Cal. Ct. App. - May 12, 2020)

Mr. Seo was going to be convicted on virtually any instruction given to the jury.  He was clearly making counterfeit currency, which is unambiguously a crime:

"Upon searching defendant’s motel room, the officer found several pieces of linen paper on the floor and in the trash can; one had an outline of a $20 bill on it. When the police searched the boxes and bags defendant had been loading into the car, they found a loaded handgun registered to defendant in a computer bag. They also found evidence defendant had been attempting to counterfeit $5 and $20 bills, including some pieces of paper with these denominations printed on them. Other pieces of paper had currency printed on them and had been cut into the shape of regular bills. One piece of paper had the front and back of a $20 bill copied on to it. Some versions of the bills were more complete than others as some did not have backs.

Defendant also had a piece of paper with four authentic $5 bills taped to it, a template, and this template had been copied onto linen paper using an inkjet printer. Linen paper is sometimes used in counterfeiting because its texture feels more like actual currency than basic printer paper. Additional pieces of linen paper, as well as a laptop computer and an inkjet printer, which is commonly used in counterfeiting currency, were found in defendant’s possession. Police also recovered four bottles of paint, paint brushes, a paint pen, and acetone nail polish remover. A United States Secret Service Special Agent with training in identifying counterfeit currency opined that the inkjet printer, linen paper, and acetone were items used in the manufacturing of counterfeit currency."

You're going to jail for that one, my friend.  (Albeit for only eight months, which is a fairly short sentence for this crime, IMHO.)  Not surprisingly, the jury convicted him.

But the question remains:  How exactly should we instruct the jury in these kinds of cases?  The Court of Appeal does a great job here explaining that the trial court's instruction was based upon a case from over a century and a half ago that both wasn't very helpful and was seemingly outdated.  As well as sets forth an alternative instruction that it suggests be used in future cases.

Great!  Definite extra credit points for Justice Ikola.  That helps to resolve both this case (in which any error was harmless anyway given the overwhelming evidence of guilt) as well as future cases.

Though I'm still left with the question:  So what is the means rea requirement for this stuff.

To which the Court of Appeal provides an answer.  But it's answer that's somewhat unsatisfying on a couple of different levels.

Mr. Seo says that the prosecution has to prove that he was (essentially) going to use this fake money; e.g., to defraud people.  But the Court of Appeal reads the statute and says that's not true; that there's a more general intent requirement.

And I understand where that concept comes from.  But it's one that's somewhat problematic.

So, for example, the Court of Appeal says that the prosecution isn't required to prove more specific criminal intent and instead need only prove that the defendant knew that the materials at issue (the printer, the ink, etc.) either "were or will be used in the counterfeiting of currency."  (Sample of that text in the opinion:  "Thus, to be convicted of violating section 480(a), a defendant must knowingly possess an item (die, paper, machine or apparatus) that he or she knew was or will be used in the counterfeiting of currency. . . . Thus, section 480(a) does not require a specific intent to do a further act or achieve a future consequence such as defrauding another.")

Let's take both parts of that, though.  Because once you strip out a requirement of future intent to commit a crime, it seems like there's potentially huge liability here.

First, the "were used" part.  According to the Court of Appeal, if I possess equipment that I know was ever used in counterfeiting, I'm guilty of a felony.  Even if I wasn't the one who counterfeited the stuff and even if I have no intent whatsoever to ever counterfeit anything.  I'm staring at a computer and printer in my office as I type this text.  Let's say that the University of San Diego told me:  "Oh, fun fact; we got those things at a police auction; they were formerly used by a notorious counterfeiter."  So now I'm guilty of a felony if I keep typing on the thing, right?  Similarly, if I go ahead and copy a $5 bill on the office copier (just for fun), and then tell everyone in the office "Ha, you can't use that printer anymore; if you do so, it's a felony," that works, right?  Seems weird.  Seems like the fact that I'm using something legitimately should make a difference, and I shouldn't be a felon just because I know that someone else in the past used the thing for a crime.  I'm not a felon just because I own a car that used to be owned by a bank robber who used it.  Why's my printer any different?

Second, the "will be used" part.  Now, if I'm going to use it to counterfeit stuff, yeah, definitely, I'm guilty.  Or ditto if I'm aiding and abetting someone.  But the Court of Appeal's decision goes further than that.  It says you're a felon if you possess the stuff knowing that anyone -- even people totally unrelated to you, and over whom you have no control -- are going to use the thing for counterfeiting.  So if I write a letter to Dunder Mifflin and say:  "You don't know me, but I'm going to buy some of your 9 x 12 paper to make counterfeit currency," and they believe me, then they're a felon unless they destroy all their 9 x 12 paper, right?  Since otherwise they're in possession of items that they know "will be used" to make counterfeit currency.  Or if I write an anonymous note to Kinko's that says "I'm positive that people are going to use one of your printers in the next 30 days to make counterfeit currency," then Kinko's is a felon unless it shuts down that department for a month or fails to have a supervisor actively watching the copiers the whole time to ensure that no illegal acts occur.  Because once you know that your product "will be" used for a crime, you're liable too unless you either actively stop the office or affirmatively dispose of the item(s).  That, too, just seems way to broad to me.

I get that there are certain things the possession of which we criminalize (e.g., stolen cars) even if the possessor didn't do the actual stealing.  But I didn't think that non-stolen items (e.g., printers or paper) that have entirely legitimate uses and that are being used entirely legitimately fell into that same category.  And I'm somewhat horrified to discover from today's opinion that, at least according to the Court of Appeal, I'm wrong.  You're a felon if you know that your computer or printer ever was or ever will be used to counterfeit something -- even by someone totally not under your control (e.g., a thief in the night).  Wow.  Crazy.

And I'm not even entirely sure why we want (or need) to push the law that way.  Mr. Seo would have been convicted even if the prosecution had to prove he intended to make make $5 bills to defraud people.  'Cause that's what he clearly was doing.  Ditto for pretty much everyone who's caught making counterfeit currency.  Why press the law so far to make a plethora of innocent people felons?  Doesn't seem necessary.

But there you have it.  After today, anyway, criminal liability for this stuff is a lot, lot broader than I suspect most everyone otherwise thought it would be.

Barber v. USDC San Francisco (9th Cir. - May 12, 2020)

Congress can let crime victims petition for a writ of mandamus, and it can also require the Court of Appeals to resolve the writ within 72 hours (!) and to do so in a "written opinion" that "clearly states" any reasons for denial of the writ.  (Section (d)(3) of the statute.)

But what Congress can't do -- or at least hasn't done -- is to make the Court of Appeals write anything more than a brief paragraph.

Which is why today's per curiam opinion states, in full:

"This is a petition for a writ of mandamus filed pursuant to the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771. We have carefully reviewed the district court record and the arguments of the parties, and hold that the district court did not abuse its discretion in determining the amount of restitution to which Barber is entitled. The district court's finding that the prior civil settlement reduced the amount of Barber's loss was supported by the evidence and was neither an abuse of discretion nor legally erroneous. See Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006). The petition for a writ of mandamus is denied. DENIED."

So there.

People v. Kruschen (App. Div. Sup. Ct. - Feb. 21, 2020)

Not much from the California appellate courts today; one published decision each from the Court of Appeal and the Ninth Circuit.

Instead of talking about either of those two (somewhat pedestrian) opinions, I thought I'd briefly mention this opinion from the Appellate Division of the Superior Court instead.  An opinion that, for many readers, may perhaps have more practical import.

It's a brief story about a police officer who tries to be nice.  And, as a result, gets burned.

A deputy sheriff is hanging out in his vehicle in Agoura Hills.  (The opinion identifies the officer as "Los Angeles County Deputy Sheriff P. Ferreira" -- weirdly, no first name.  It looks like the officer's first name is actually "Paul," and here's a picture of him welcoming his son to the force after the latter graduated from the police academy.)  He sees a school bus stopped in front of an apartment building with its doors open, its red lights flashing, and that little red sign on the signal arm that says "STOP" hanging all the way out.  Meanwhile, a car takes a left hand turn and blows by the school bus.  That vehicle is driven by Sharon Kruschen.

Deputy Sheriff Ferreira stops Ms. Kruschen to give her a ticket.  Deputy Sheriff Ferreira knows that the penalty for blowing past a school bus is (allegedly) huge; something like $850.  So, instead, he elects to cite her only for blowing past a stop sign, an infraction with a much less serious penalty (and one for which you can simply go to traffic school).

Ms. Kruschen nonetheless decides to go to trial, and is found guilty, but the trial court lets her go to traffic school anyway.  But Ms. Kruschen decides to appeal.  And wins.

The Appellate Division holds that, in being nice, Deputy Sheriff Ferreira ended up letting Ms. Kruschen off the hook entirely.  Because the statute he cited -- going through a stop sign -- doesn't apply when there's a more specific statute (going through a stop sign on a school bus) that governs the offense.

So the conviction for the offense for which she was cited gets thrown out.  And you can't get her for the offense she actually committed due to double jeopardy.

Freedom!  (From traffic school, anyway.)

Which is great for Ms. Kruschen.  Though bad, I suspect, for the next person that Deputy Sheriff Ferreira (or anyone else in his department) spots blowing past a school bus with its lights on.

Kurtz-Ahlers LLC v. Bank of America (Cal. Ct. App. - May 8, 2020)

It's not surprising (at all) that this case came out the way it did.  Both in the trial court and in the Court of Appeal.

The law's pretty clear.  We don't impose a duty on banks to monitor accounts for fraud.  Period.  So the bookkeeper here stole $700,000 from her employer by writing checks on the firm's bank account, but the bank isn't liable.  She goes to prison, the employer loses all the money, end of story.

Yes, that's the law.

But you could imagine a world (or jurisdiction) in which the law was marginally different.  And, perhaps, that world is a better one than the one in which we currently reside.  Maybe the rule should instead be:  "Banks generally don't have a duty to be on the lookout for fraud, but when the fraud is pretty much obvious, and the bank could easily discover it, then a jury may potentially hold it liable."

This case is a poster child for that alternative universe.  The firm and the bookkeeper have separate accounts at Bank of America.  Which is fine.  But then, one day, to her personal account, the bookkeeper inexplicably adds the "d/b/a" of "Income Tax Payments" to her personal account.

Let me ask you this:  Why do you think the bookkeeper suddenly said she ran a business called "Income Tax Payments?"  And do you think anyone in the world actually runs a business that's entitled "Income Tax Payments?"

Of course it's a scam.  Of course she's just going to start having her employer write checks for "Income Tax Payments" and then deposit them to her personal account.  Any idiot would know that.

The Court of Appeal nonetheless says that banks don't have a duty to "monitor" accounts.  On the theory that doing so would "invade the privacy" of account holders and increase costs.

Which is a tiny bit true.  But let's fully recognize how tiny that burden is.

Already, when you open a bank account, you've got to give them identification, if it's a business show 'em incorporation and bylaw statements, etc.  You can't just walk into a bank and say "I'd like to open up a deposit account in the name of 'Donald Trump' and another in the name of 'Microsoft'." No way they're going to let you.

Yet, as far as I can tell, when the bookkeeper here adds a d/b/a to her account in the name of "Income Tax Payments," Bank of America does nothing.  Can I similarly open a Bank of America account in the name of United Sales Treasury -- which I'll call "U.S. Treasury" for short?  Or how about "FTB" (which stands for "Free Tech Bundles," of course)?  Of course not.  Only an idiot would let you open such an account.  (Or someone in on the fraud.)

Let's see how much it would take to "monitor" accounts for such conduct.  I suspect the only thing you'd have to do is to have an employee who's job it was to look at any new accounts (or accounts with a new name added) and see whether the name on the account is something that looks obviously fraudulent -- and, if it does, to veto the name and/or briefly follow up.  Sort of similar to what the DMV does with "offensive" personalized license plates.

The overwhelming majority of accounts would have obviously okay names.  Maybe one in ten thousand or so might be worth investigating.  Maybe it takes 10 seconds to look at a name (e.g., "Shaun P. Martin") and decide "Okay, that's fine" and hit the "approved" button.  Do that 8 hours a day and you can review 6 a minute, 360 an hour, 2880 a day, 14,400 a week, and 720,000 accounts a year.  Even if you have a second person, full time, to investigate anything suspicious, that's not much money at all.  Two employees for huge bank with millions of accounts.  It'd have cost $100,000 or so tops, and would have saved $700,000 in this case alone.  Seems like a decent cost-benefit exchange.

The Court of Appeal says that it's more efficient for employers to police themselves by hiring good bookkeepers etc.  But I'm not really sure that's true.  It takes a lot of effort to investigate individual bookkeepers (both initially and as they practice) -- much more than just to police account names for obvious fraud.  And the banks are able to monitor thousands of account collectively (thus spreading the cost) whereas an individual firm can only review one account.  Plus, it's not mutually exclusive; the firm can (and undoubtedly will) monitor its bookkeeper, but the bank can also be a backstop to that.  And if an embezzlement is 80 percent the firm's fault and only 20 percent the bank's fault, any jury award will presumably reflect that fact.

To the degree that banks already monitor accounts for obvious fraud -- which they should, if only to protect the bank itself (e.g., I suspect that the legal fees in this case alone were more than it'd cost the bank to check for obviously fraudulent account names) -- then imposing a duty won't add additional out-of-pocket expense beyond what they already do.  And to the degree that banks don't monitor for obvious fraud, that seems to me a market failure.  If you were opening a business bank account, and it cost you, say, $1 more per year to go with a bank that monitors for fraud, wouldn't that choice be a no-brainer?  Yet I suspect that banks neither aggressively compete on this level and that the relevant information market on this point is far from robust.  A decent argument for regulation; or, at least, the imposition of traditional duties that we ordinarily impose on people who hold your funds (bailees).

I'm not sure I'd impose much of a legal duty on banks.  (If any; again, I understand the rationale for existing precedent, even though I don't think the arguments are nearly as conclusive as they might seem to others.)  But it doesn't seem all that absurd to me to say that banks shouldn't register accounts with names that appear, even to me, facially fraudulent, at least without at least some supplemental inquiry.  Tiny burden, big benefit.

To be clear:  Not the law in California, however.

Modesto Irrigation Dist. v. Tanaka (Cal. Ct. App. - May 7, 2020)

This doesn't read at all like a typical opinion by Justice Raye.  Or even a typical opinion from the Court of Appeal.  It reads more like a novel.

There's excruciating detail -- full of principal sources from the period -- about the extent and nature of farming in the Sacramento delta during the late 19th century.  And I mean excruciating detail.

It's not that this information is totally irrelevant to the dispute.  It's relevant.  The question is whether the grantor intended to transfer riparian rights alongside the land.  And Justice Raye's basic argument is that he did; that it wouldn't make sense to transfer farmland in this area at this time without the corresponding right to irrigate crops using water from the nearby river.

But, still, the level of detail here is intense.  With a lot of background facts that read more like they're from a PhD dissertation about California agriculture in the 1800s than a judicial opinion from 2020.

I'm not way persuaded that no one would buy this land (for farming or otherwise) and rely solely upon (as one witness testified) the "water from above" to irrigate crops (or water from below -- i.e., a well -- to satisfy these or other needs).  But I'll agree that Justice Raye makes a strong case that any buyer should have probably wanted riparian rights as well.  Particularly if they didn't cost much (or anything).

Anyway, after today's decision, the owner of this land gets to take water from the Middle River.  Good for her.  Maybe not great for everyone else, but it definitely just made her property that much more valuable.

All as the result of an opinion much of which reads like historical fiction.

California Valley Properties v. Berlfein (Cal. Sup. Ct. App. Div. - March 20, 2020)

Two things are virtually certain to be true about published decisions from the Appellate Division of the Superior Court.  First, they're consistently circulated far later than their "official" publication date; typically, months later.  Second, they're almost always interesting.  You get to see how small-stakes litigation operates.  (And I call it "small stakes" only because of the relative amount of money at issue; for the litigants, the stakes often could not be higher.)

This opinion is about an eviction.  Is the tenant not paying rent?  Nope.  Rent's paid just fine.  But the landlord moves to evict the tenant because a blank in the lease agreement says that the property will be occupied by no more than "1 Adult [and] 1 Children" and now there's another person (a woman) in the apartment?

Was the property sublet?  Nope.  Same main tenant.  Did the landlord not know that there'd be a couple in the property?  Nope.  When the property was first rented to the tenant (in 1998), they filled in the blank with "two adults and one child," since there was a couple living there with their minor child.  But later that year, the couple broke up, and the woman moved out.  So then, in 1999, the landlord had the tenant "update" the blank on the form to say one adult and one child.

The tenant stays in the place for a decade.  In the meantime, he (1) gets married, and (2) the minor child grows up and moves out.  So there were originally three people in the place; a couple and a kid.  Now there's two people in the place:  a couple.

So the landlord files a lawsuit to evict them.  Claiming that the tenant's breached the agreement by occupying the residence with two adults rather than one adult and one child.  Notwithstanding the fact that (1) the original tenancy was for two adults and a kid, and now there's only two adults, and (2) the relevant rules state that a landlord cannot unreasonably hold consent to adding an additional tenant on the lease (and the landlord offers no reason whatsoever why the tenant's wife shouldn't be allowed to live with him).  Plus, for what it's worth, the wife's been in the residence for years, and the landlord's known full well about that (and accepted rent knowing that fact)

Oh, did I mention that the property's rent-stabilized?  And that a new owner bought the place six months ago, and is now trying to kick out the current tenant for having "too many people" in the property originally rented for a three-person occupancy (and currently occupied by two)?

Maybe gives you some insight into what's really going on here?

Fortunately, the trial court and the Appellate Division seem to understand both the equities as well as the law.  The rules say the landlord can't unreasonably withhold consent to an additional tenant, and that's exactly what he's doing here.  The landlord argues that this principal doesn't apply when the tenant doesn't ask for consent in advance (as opposed to after the three-day notice is filed), but the courts reject this argument.  Happily so.  So the guy (and his wife) gets to stay in their apartment.

Which is utter and complete justice, IMHO.

A look inside the trenches on a lazy Wednesday afternoon . . . .

People v. Torres (Cal. Ct. App. - May 4, 2020)

Doctrinally, this is simply a case that applies -- in a fairly straightforward fashion -- a prior decision from the Court of Appeal that holds that the prosecution in a murder trial has to do something (not necessarily something effective) to try to delay a critical witness from being deported before trial instead of simply using that witness' testimony at the preliminary hearing at trial.  Justice Bigelow dissents, arguing that the majority decision improperly expands precedent.  But, with respect, I think her real disagreement is with the underlying decision itself.  It's that's right, then the majority is right that the present case must be reversed.

It's a Justice Wiley opinion, which (as usual) you can tell from its particular style.  When discussing whether the underlying error was harmless, there's a wonderful quote in the middle of the opinion:

"The question thus is whether there is a reasonable possibility the evidence complained of might have contributed to the conviction. (Chapman, supra, 386 U.S. at p. 23.) The answer is yes. If we subtract Hernandez’s hearsay testimony from the trial evidence, this leaves only one testifying eyewitness to the stabbing: victim Quinones. The prosecution described Quinones’s trial performance as “a bunch of crazy stuff.” [emphasis in original] . . . . We agree with the prosecution’s description. Quinones was too crazy a witness to be the sole foundation for a conviction for attempted murder. . . . [B]etween the methamphetamine and his continuously evolving contradictions, Quinones proved himself an impressively unreliable witness."

Wonderful.

P.S. - Speaking of Justice Wiley,d an informed reader tells me he's looking for a law clerk -- term or permanent -- to start in August.  I'd attach the announcement if I could, but that's a task beyond my technological competence, so I'll just cut-and-paste the thing:

August 2020 judicial clerkship opening

I need help deciding appeals and crafting appellate opinions.  I have an opening for one judicial attorney, to start August 24, 2020 or thereabouts.

     Our goals here at the California Court of Appeal are to achieve the ideal of equal justice under law and to inspire the public with the excellence of California’s appellate justice system.  The work is fulfilling, important, diverse, and fascinating:  we encounter just about every imaginable human conflict, in practically every legal setting.  Every case is a new story.  You would work with me directly, as well as with a small, supportive, friendly, fun, talented, and non-hierarchical group of colleagues. 

     We used to work together in downtown Los Angeles.  Nowadays we are all working from home in one of the most quarantine-tolerant jobs ever.  Internally, we have a lot of video chats, phone calls, texts, and email conversations.  Externally, oral arguments are strictly remote.  Who knows when all that will end?

     You must have excellent academic and professional credentials.  Actual or pending membership in the California bar is required.  We are writers:  you have got to love to write.  Judgment is vital.  Terrific research skills are important.  And you must enjoy puzzling through the law to figure it out, because every new case brings fresh challenges. 

     I am open to lawyers who would like to clerk for a set term, preferably two years, as well as to those considering a judicial attorney career.  It is fine if you are entertaining both possibilities and have not decided. 

     The more professional experience you have, the better. 

     Please send a cover letter, resume, references, law school grades, and writing sample to Div8.J4@gmail.com.  And please spread the word, if you know someone who might be interested.

John Shepard Wiley Jr.

California Court of Appeal

Second District, Division Eight

https://www.courts.ca.gov/41621.htm

https://www.ali.org/members/member/191753/