Wehsener v. Jernigan (Cal. Ct. App. - Dec. 28, 2022)

You don't see many intestate succession disputes in the Court of Appeal. And in reading the facts of this one, it definitely harkens back to a bygone era.

The question is whether Judy is the presumed child of Charles. If she is, then she's entitled to a large portion of the decedent's estate. By contrast, if she's not his child, then that portion goes to one of the decedent's first cousins (Wendy).

The decedent died in 2018 in San Diego. Charles was a resident of Indiana and died in 1993. Judy -- the person who may or may not qualify as Charles' presumed "child" -- was born in 1949. Here are the facts about Judy and Charles to which all the parties have stipulated, and that I suspect do not happen much in the present era (having been replaced by formal structures of foster care, court intervention and the like):

"Judy was born on April 6, 1949. Her biological parents were Dorothy Sue Davenport and Henry Lee Hayden. Judy’s biological mother abandoned her and her biological father when Judy was an infant. Judy lived with her biological father until she was two years old.

When Judy was two years old, Judy’s biological father dropped her off with Charles and [Frances], who were then living in Kentucky, and asked them to babysit. Judy’s biological father never returned. Judy continued to live in the home of Charles and Frances for the duration of her childhood.

When Judy was not more than eleven years old, Charles, Frances, and Judy moved to Indiana. When Charles, Frances, and Judy moved to Indiana, Charles and Frances openly held Judy out to be their daughter. School records from Indiana show that Judy was registered with the last name ‘Bloodgood[,’] and as a child of Charles and Frances. Charles and Frances continued to hold Judy out as their daughter for the remainder of their lifetimes. The Last Will and Testament of Charles E. Bloodgood named Judy as Charles[’s] daughter.

Judy is not Charles[’s] or his wife’s biological child, and there is no evidence she was legally adopted. Thus, any purported relationship between Charles and Judy is based solely upon Charles having taken Judy into his home and having held Judy out as his daughter. Charles and Frances knew that Judy was the biological child of another couple. . . .

Because of his own negative experience in the foster care system, Charles chose not to initiate any action to legally adopt Judy. There is no evidence that there was any legal barrier preventing Charles from legally adopting Judy during his lifetime."

The way child abandonment worked in the 1950s in Kentucky is certainly different than how it currently works in the 2020s in California, eh?

As far as I can tell, though, things worked out fairly well for Judy. She had a daughter of her own, and I presume (and hope) that she was loved by her all-but-adopted parents.

Still; having someone drop off their daughter with you for babysitting and then never return. That's got to be a shock at the time.

P.S. - The Court of Appeal agrees with the trial court that California law applies and that Judy is indeed the presumed child of Charles, hence entitled to recover under intestate succession.

Bishop v. The Bishop's School (Cal. Ct. App. - Dec. 21, 2022)

As a rule, I don't write about appellate cases in which I have some involvement, on the theory that I'm not neutral, and it doesn't add much to have an advocate state whatever position they might have on an appeal that's already been adjudicated. 

Fortunately, even though I know a fair piece about the underlying events, I didn't participate in any of the resulting litigation, so my rule doesn't apply to this opinion published by the Court of Appeal today. Hence my brief words about it.

It's a case down here in San Diego. It involves -- confusingly -- a plaintiff named Chad Bishop ("Bishop") who's suing a secondary school at which he was a teacher called The Bishop's School ("Bishop's"). So it's tough at times for an outsider to necessarily keep the parties straight.

The case involves a salacious tale of a teacher fired for an allegedly flirtatious text exchange with a 19-year old former student. A text exchange that Justice Buchanan helpfully quotes in full. Check it out on pages 3 and 4 of the opinion.

Chad (Bishop) sues the school (Bishop's) for breach of contract, which is fairly straightforward, as well as defamation for telling parents and a newspaper about the circumstances of the firing. The school files an anti-SLAPP motion, which the trial court grants in part, largely striking the defamation claim but leaving the contract claim. The Court of Appeal substantially affirms, but holding that one portion of the claim for defamation (involving Bishop's termination letter) didn't arise out of protected activity.

Justice Buchanan's opinion accurately resolves the appeal, in my view. Seems fairly straightforward and correct to me. Just two points:

First, this shows the strategic downside of bringing defamation claims. Plaintiff's got a just fine claim for breach of contract, and one that survives a demurrer. The claim for defamation is not only weaker, but also invariably will bring an anti-SLAPP motion. Which will either (1) be successful, thus resulting in a waste of time and money on your end, as well as an award of attorney's fees against your client, or (2) fail, but nonetheless still waste your time and money, as well as likely result in an anti-SLAPP appeal that requires the expenditure of further time and money, as well as delays the lawsuit for a year or two while it sits up in the Court of Appeal.

So think deeply before bringing defamation claims, okay? Even if you think they might survive.

Second, I wonder whether Justice Buchanan might want to consider amending the opinion to refer to the 19-year old female student by her initials, rather than her full name. This near-minor sent drunken texts to one of her older male former teachers at I'm certain she regrets and that ultimately resulted in the teacher getting fired and litigation arise. She's not a party to the appeal and probably would rather not have the opinion -- and the full content of her text exchange -- pop up on the first page every time someone searches her name on the Internet. Yes, she's not technically a minor, since this all transpired months after her 18th birthday. (Hence the allegedly large number of margaritas in Mexico that led to the text exchanges.)

But still.

Seems to me the opinion would be just as readable using her initials or her not-so-unusual first name. (Plus it's got all those confusing "Bishop v. Bishop's" in the thing anyway, so it's not like readability is at a premium anyway.)

So think about that.

FULL DISCLOSURE - All my children either graduated from or currently attend the school at issue (Bishop's), and I previously served alongside the author of the opinion (Justice Buchanan) on the board of directors of a nonprofit entity. But while, as I'm said, I'm familiar with the underlying controversy, I have no stake or involvement in the underlying litigation, nor am I close personal friends with any of the participants. (Though my wife tells me that at least one of our children had the plaintiff as a teacher, a fact I did not recall when I was reading the opinion.)

In re Geoffrey S. (Cal. Ct. App. - Dec. 19, 2022)

It's an important issue, and today's split decision by the Court of Appeal cogently identifies the competing positions. Justice Buchanan writes the majority opinion and says:

In Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550 (Kaiser), we held that hearsay evidence is admissible at a hearing on a workplace violence restraining order (WVRO). (Code Civ. Proc., § 527.8.) Other courts have reached the same conclusion for a hearing on a civil harassment restraining order (CHRO). (Code Civ. Proc., § 527.6; see Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 728–729 (Duronslet); Yost v. Forestiere (2020) 51 Cal.App.5th 509, 521 (Yost).) 

We must now decide the same question for a hearing on a gun violence restraining order (GVRO) under Penal Code section 18175.1 We hold that hearsay evidence is likewise admissible at a GVRO hearing. We further conclude that the evidence submitted to the trial court was sufficient to establish by clear and convincing evidence that appellant Geoffrey S. posed a significant danger of causing personal injury by gun violence.2 (§ 18175, subd. (b)(1).) Because we reject Geoffrey’s other claims, we affirm the oneyear GVRO issued against him."

Justice Dato, by contrasts, dissents, with the following basic position:

"This case presents a classic question of statutory interpretation. When it enacted the gun violence restraining order (GVRO) statutes in 2014 (Stats. 2014, ch. 872 (Assem. Bill No. 1014)), did the Legislature intend that all forms of hearsay evidence should be admissible without limitation in a noticed hearing seeking a GVRO? The Legislature’s intent with respect to the meaning of a statute is not always crystal clear, and in this instance it might be better characterized as opaque. It is therefore hardly surprising that reasonable judges might disagree. 

There is, however, a more fundamental question that will have much to say about how we ultimately decide what the Legislature intended and what the statutes mean. That is because the Legislature itself has provided a framework within which we are to analyze questions about the admissibility of hearsay. Evidence Code section 1200, subdivision (b) succinctly states the generally applicable rule, “Except as provided by law, hearsay evidence is inadmissible.” The issue we must decide is whether, in the case of GVROs, the Legislature has otherwise “provided by law” for an exception. And to determine if the Legislature intended an exception, we must first understand the general rule. 

The rule against hearsay evidence exists for one overriding and crucial purpose: To make sure results in the courtroom are based on the truth. To expose innocent fibs, outright falsehoods, and all types of fabrications in between, witnesses are ordinarily required to personally appear in court, affirm to tell the truth, and be subject to cross-examination. (See California v. Green (1970) 399 U.S. 149, 158.) Courts have long recognized the importance of cross-examination and its crucial role in ferreting out the truth. (In re Brenda M. (2008) 160 Cal.App.4th 772, 777 [“ ‘Crossexamination is the principal means by which the believability of a witness and the truth of his testimony are tested.’ ”].) 

But it is impossible to cross-examine a witness who isn’t there. And in this case, the deputy city attorney who appeared at the hearing merely offered the court San Diego Police Department (Department) reports that memorialized several police contacts with Geoffrey S. at his home over the course of a week in April 2020, near the beginning of the COVID-19 pandemic. In addition to the observations of officers, these reports included statements made by other, sometimes unidentified, persons. They also summarized Facebook posts allegedly made by Geoffrey but did not attach copies. At the same time, the Department’s presentation ignored—or at least significantly downplayed—the numerous factual errors in the psychiatric hospital’s intake report, as well as the fact that the hearing officer who ultimately dismissed the Welfare and Institutions Code section 5150 hold concluded that Geoffrey had “no known history of diagnosis or treatment” for mental illness and “does not have a mental disorder.”

Critically, not a single witness testified at the hearing, not even the officers who authored the reports. The deputy city attorney merely argued that the reports proved by clear and convincing evidence that a one-year GVRO should issue."

Nicely put by both sides, I think.

All that said, this case is from San Diego, and while I won't comment on the doctrinal dispute, I will say that I'm fairly happy that -- at least for a while -- Geoffrey S. won't be allowed to buy any more guns or ammo. (Though the underlying one-year order has apparently expired at this point.) The guy seems to fairly clearly have huge problems, and I say that with full recognition of Justice Dato's point that we're not actually listening to the underlying witnesses, but instead reports that are technically hearsay about what he's allegedly done. Here are some snippets:

"Geoffrey explained to the police that for several weeks, he had been posting on social media about his belief that philanthropist Bill Gates had murdered millions of people. In response, a stranger called him to express his agreement. When Geoffrey asked the person how he got his phone number, the person said it was given to him by God. As a religious person, Geoffrey then invited the person over to his house to talk about their beliefs. The person came over and spent the night. The next day, they talked all day and read Bible verses. The man eventually proclaimed that he was God, got a kitchen knife, and demanded that Geoffrey “ ‘kneel before him.’ ” After Geoffrey complied, the man said, “ ‘I am going to kill you motherfucker.’ ” The man also told Geoffrey he was a “ ‘west coast gangster’ ” and had “been shot and stabbed before.” 

Geoffrey told the police he had “ ‘hunting shotguns’ ” inside his house, but no ammunition. He began talking about his “conspiracy theories” and “distrust of the government.” He explained “his eccentric beliefs about how he didn’t believe the Corona virus was real, how Bill Gates is a murderer and he is trying to vaccinate everyone with ‘nanotechnology’ so they can be tracked by 5G towers” and “claimed he even called the FBI San Diego field office to report what he knew about Bill Gates . . . .”

According to the police reports, “Geoffrey was very animated, agitated and was rambling about a government takeover.” He “believed Bill Gates and the government were using the COVID-19 to scare Americans into receiving a vaccine to infuse trackers” and that “5G cell towers being installed would be used to track everyone with the vaccine.” “Geoffrey would not answer specific questions but would instead go into lengthy rants about various unrelated topics.” He “was exhibiting psychotic and delusional behavior.” “When asked specifically about his quest for ammunitions and his intentions, Geoffrey replied that it was none of our business and quoted his 1st and 2nd amendment rights. Geoffrey became paranoid about where we had received our information and accused us of working with FBI to tap his phone lines. Geoffrey did confirm that he owns several shotguns.” “Geoffrey was aggressive in nature and very confrontational, answering most of our questions with questions and stating we were all stupid. At one point, Geoffrey stood up and began screaming at the top of his lungs, ‘I’m buying ammo and you should too!’ ” . . . . 

The defense exhibits included a psychiatric admission evaluation of Geoffrey and medication noncompliance summary, both prepared by Dr. Samuel Etchie at Alvarado Parkway Institute (Alvarado). The psychiatric admission evaluation (signed April 22, 2020) described Geoffrey’s “delusional beliefs” and his admission to the hospital’s psychiatric intensive care unit after Geoffrey’s pastor and a friend had called 911 to express their concerns about his mental state and social media postings. Geoffrey repeated to Dr. Etchie his theories about Bill Gates and the COVID-19 vaccine. He said: “They have this vaccine and if they are going to force us to take this vaccine then I need to buy ammo and ammunitions to defend myself against the government and protect my family . . . .” Geoffrey also told Dr. Etchie that his pastor, a friend, and his father all “told lies against [him].” 

Dr. Etchie stated: “Upon arrival at this facility . . . , the patient remained with significant risk of danger to others as a result of welldeveloped and well-organized delusional thought processes about the government and various governmental agencies . . . and the philanthropist, Bill Gates, and the current COVID-19 vaccine that is not even available at this time.” “Inpatient psychiatric admission is imperative at this time due to the imminent risk of harm to others and the patient’s ability and wherewithal to purchase arms and ammunitions and to prevent harm to the patient and to others.” “The patient . . . remains with significant risk of harm to others, especially, ‘people from the government and people connected with the Bill Gates vaccine and the FBI.’ ” Dr. Etchie diagnosed Geoffrey with “[b]ipolar affective disorder, mania, severe with psychotic features.” 

In the medication noncompliance summary (signed May 4, 2020), Dr. Etchie quoted Geoffrey as follows: “Everybody’s against me - my deacon, my pastor, my father, my friend, the police, yourself, the nurses and staff in this hospital because of only one reason. I want to defend my Second Amendment rights to defend myself because of all the crazy things that have been started and have been sponsored by Bill and Melinda Gates Foundation to infect millions of Americans with bad vaccine in the name of treating this viral pandemic.” Geoffrey denied any mental illness and refused to take any medication."

Yikes. Geoffrey has some problems, no?

Oh, one more thing. Geoffrey's not homeless or anything. He's got neighbors, Facebook friends, a pastor, etc.

And he's a member of the Ohio bar.

CFPB v. Aria (9th Cir. - Dec. 12, 2022)

The factual recitation in Judge Tallman's opinion speaks for itself:

"[Armond] Aria was the founder, owner, CEO, and registered agent of the now-defunct Global Financial Support, Inc. (Global). Operating under the names “College Financial Advisory” and “Student Financial Resource Center,” Global mailed millions of solicitations to current and prospective college students from 2011 to 2016. The solicitation packets contained a letter, an information sheet, a Demographic Form, and a return envelope.

The letters featured official-looking letterhead with college-themed seals and an arbitrary filing deadline. The wording varied from year to year, but the letters generally advised students to avoid taking out loans until they had applied to all of the available “free” financial aid programs. The letters asked students and their parents to disclose basic demographic information in the Demographic Form and pay Global a $59 to $78 “processing” fee. In exchange, the letters vaguely promised to enroll the students in a financial aid program. Meanwhile, the Demographic Form promised “to provide as many targeted financial aid opportunities as possible to each and every student.” In fine print footnotes, the letters disclaimed any affiliation with governmental or educational institutions.

Minus refunds, Global received $4,738,028 in fees from at least 76,000 students. The only product or service that students received was a booklet. Each booklet contained a welcome memo that provided a general overview of student financial aid with advice on topics ranging from federal student loans to the tax implications of attending college. The booklets also contained sections on federal and state financial aid programs. Although Global included some tailored information based on students’ responses to the Demographic Form, Aria admitted the information was compiled “at a group level” and he “did not individually tailor [the booklets] to” any individual student. For example, students sometimes received the contact information for all 50 states’ financial aid agencies—regardless of the students’ residency—and were directed to Google search their home state’s financial aid opportunities. Additionally, Aria asked students to list their interest in playing collegiate sports, but the booklets provided only a generic “list of scholarships available to student athletes regardless of sport.”

Hundreds of complaints were submitted to various state, federal, and nonprofit consumer watchdog entities, which triggered the federal consumer fraud investigation that led to this proceeding."

The Consumer Financial Protection Bureau sued Aria, claiming -- entirely accurately -- that Aria's stuff was deceptive. The district court granted summary judgment to the CFPB, Aria appealed, and the Ninth Circuit affirmed.

In my view, Aria -- who resides, I believe, down here in San Diego -- should feel super lucky that the only thing he lost from this scheme was a civil restitution order for millions of dollars. I would also want the guy put in prison, honestly; a fate he apparently escaped.

In re D.N. (Cal. Supreme Court - Dec. 12, 2022)

It's not that I disagree with today's opinion from the California Supreme Court. I don't. Which is good, since it's unanimous, so if I disagreed, my presumption would typically be that I was the one in the wrong, not the Court.

I instead wonder why the Court granted review of the issue in the first place.

The trial court declared a juvenile offender a ward of the court and ordered that he live at home under certain probation conditions. The trial court told the probation office in advance that if there were any potential future probation violations (e.g., not showing up at school on occasion, etc.), there was an easy solution, stating: "“Probation is authorized to offer the minor up to 50 hours of community service, or up to a cumulative total of 10 days on the community service work program as an option to work off alleged probation violations.”

The trial court thought that was fine. The Court of Appeal thought that was fine. The California Supreme Court thought that was fine; unanimously, no less. And as far as I can tell, there's no split in the Court of Appeal nor any judge or justice, anywhere, who thought that this type of deal isn't fine.

So why not just leave the Court of Appeal's decision standing? What's the downside? What's the need to take the case up and reaffirm that, yep, the Court of Appeal got this one right? Is this really one of the most important matters on the California Supreme Court's docket? (I'd have thought not, not only given the correct answer to the question, but also the fact that the issue is somewhat fact-specific, and not at all uniformly imposed in all -- or nearly all -- juvenile probation cases.)

Plus, I'm even more convinced of the Court's holding than perhaps even the Court itself. I totally agree that it's not an unconstitutional delegation of power because, as the Court explains, it's just an offer. If the juvenile doesn't want to accept the offer, they can refuse it, and go to court and fight the allegation (or request a different condition/penalty). It's just the trial court telling the probation office in advance that if it wants to make such an offer, that'd be totally fine with the trial court.

Makes total sense.

Indeed, to me, the whole thing's a nothingburger because the probation office already has that power even absent the trial court's express invitation. As the Court explains, it's just an offer; an offer that the probation office can make and that, if accepted, would result in the probation office not bringing up the probation violation in court; e.g., if you do 50 hours of community service, we'll ignore the fact that you skipped class for two weeks. But, in my view, the probation office totally has that ability already, as part and parcel of its executive discretion. It's the one who decides in the first place whether to bring alleged violations to the trial court anyway. If it doesn't feel like it, or doesn't feel they're significant, it can just ignore 'em. As I'm sure it does every single day; e.g., when a juvenile skips a particular class. And if the probation office can ignore it altogether, then it can do the lesser as well; agree to ignore the thing if the juvenile agrees to do something special. The greater includes the lesser.

I'm sure that, all the time, the probation office tells juveniles things like "Okay, I'll ignore you skipping class this one time if you agree not to do it again." And, if it felt like it, it could surely say things like "Look, I know you shoplifted a candy bar from that one store, and that's wrong, so go back and pay for it and apologize to the shopkeeper and we'll look the other way and not bring a probation violation." No different here, right? The probation office already could say "You know what, you've done something wrong, and I could violate you if I wanted to, but I'll make you a deal; volunteer in a soup kitchen for 50 hours and I'll decide not to bring the thing to court."

The fact that the trial court "authorized" the probation office to do that, in my view, essentially means nothing. It grants them zero powers over the powers the probation office already possesses. Which in turn means there's definitely no delegation.

Really, I think that all the trial court's doing here is giving its informal blessing to the type of deal that it thinks would be potentially equitable in the future. A deal that's already within the power of the two parties (the probation office and the juvenile) to informally make on their own, but this way, there's a tiny bit more "formality" to the deal. A legally meaningless formality, mind you, but one that might set the parties on a particular path.

That's perfectly fine. For a plethora of reasons, including but not limited to the ones articulated by the California Supreme Court.

Diaz-Rodriguez v. Garland (9th Cir. - Dec. 8, 2022)

We're in the middle of exam season here at the law school, so I read this Ninth Circuit opinion, I thought it'd be a great basis for a law school final exam. (Of a sort, anyway.)

So, to take you back to those halcyon days of law school, I thought I'd turn it into one and let whomever wishes take the exam.

Here goes:

"A federal statute provides that people can be deported ("removed") from the United States if they have committed a crime of 'child abuse, child neglect, or child abandonment.' Defendant is found guilty in state court of the crime of 'child endangerment' for driving while drunk while his five-year old son was in the vehicle.

The case reaches the Ninth Circuit, which eventually hears the case en banc. Five judges agree that Defendant can't be deported because child endangerment is different than child abuse or neglect. Four judges agree the Defendant can be deported because the terms 'child abuse' and 'child neglect' are ambiguous can rationally be classified as including endangerment. Two judges agree that Defendant can be deported because child endangerment categorically constitutes child abuse or neglect.

Question One: You're a district court judge. Which opinion, if any, states the law of the Ninth Circuit?

Question Two: You're on the Supreme Court. Which opinion, if any, is correct?

For further reference, if you wish, you may read the underlying opinions in their entirety, which are attached herewith. They collectively total 169 pages.

You have 90 minutes to write your answer. Begin."

People v. Carabajal (Cal. Ct. App. - Dec. 7, 2022)

The Court of Appeal holds that it's not a sufficient basis for a new trial, at least given the trial court's evidentiary findings in the present case. You nonetheless gotta admit that it's not a good look when the juror here (1) is listening to a prosecution for sexual assault, (2) hearing the testimony of alleged minor victim, (3) in a matter being prosecuted by the Solano County District Attorney's office, decides, in the middle of that trial (right before jury deliberations), to . . . apply for a job with the Solano County District Attorney's Office. As a victim advocate in criminal cases, no less.

You can see why the defendant is quite a bit upset when he discovers this fact several months after the jury convicts him. Especially since, yeah, the juror got the job. (After convicting him.)

You do have to wonder about at least implied or subconscious bias in such a setting, no? I mean, do you think the District Attorney's Office is really going to be excited about hiring someone who just days prior voted to acquit a defendant in a criminal case that your own office was prosecuting? Especially as a victim advocate, given that she just voted to acquit someone whom your office believed sexually assaulted multiple minors? 

And do you think the juror, at some level, at least, isn't going to be cognizant of that fact? That voting to acquit might well not be the best possible move she could make if she wanted to be hired for the job to which she applied literally hours previously?

Interesting stuff.

U.S. v. Reiche (9th Cir. - Dec. 5, 2022)

On first glance, this opinion from earlier today seems totally right. Ellen Reiche wants to take "direct action" to protest the use of fossil fuels, so she and a colleague go out in the dead of night to stop an incoming train carrying a load of crude oil. She doesn't tip the train over or rob it or anything like that; instead, she uses a simple little trick called "shunting."

Which sounds fancy, and I definitely hadn't heard of the technique before today. But really, it's quite simple. As a safety measure, trains use electricity to monitor if there's another train already on the track ahead. The railroad sends a super low current down the track, and if it hits the metal wheels of a train as they pass over a particular very small separation in the track, the metal wheels of the train complete the circuit, at which point the railroad knows there's a train already there.

Essentially, once you know this, all you have to do to "fake" another train being already on the track -- hence stopping any actual train traffic before that point -- is to clip a set of wires on both sides of the gap. Now the railroad thinks there's a train already on the track, so the actual trains behind it will stop.

Pretty smart.

Though not super smart. First of all, it only delays the actual trains a tiny little bit; the signal tells the railroad that there's an alleged train already on the tracks, and where, and the railroad knows there's not supposed to be a train there, so quickly sends out someone to look at the track, at which point they'll see (1) no actual train, and (2) the wires clipped to the track. So only a tiny delay. Second, there are often motion sensors in high-traffic areas, like this one. So they pick up Ms. Reiche and her confederate super quickly; like, literally within minutes, while they're still on the tracks.

Hence the federal conviction for interfering with a railroad.

All makes sense.

The underlying offense gives Ms. Reiche a base offense level of 9, but she gets 9 extra points added -- resulting in a sentence of a year in federal prison -- because her conduct "recklessly endangered the safety of a mass transportation vehicle." She says she didn't know that, but the district court disagreed, and the Ninth Circuit affirms.

Like I said, on first glance, the opinion in this regard makes facial sense. Judge Lee writes:

"Reiche’s actions . . . were obviously reckless and risky. It does not take a locomotive engineer to recognize that forcing a freight train to come to a sudden stop endangers the safety of those on and around it. . . . Indeed, it is a common trope even in cartoons and comics that a speeding train cannot stop quickly and may derail in trying to do so. And common sense underscores the danger of having a speeding vehicle stop suddenly: Imagine if someone placed nails on a road to cause a flat tire in a bid to stop cars. Perhaps the car could safely come to a stop—but any reasonable person would recognize that this is a risky thing to do because the car, for example, may careen off the road or spin out of control. 

Yet Reiche planned to suddenly stop a speeding freight train carrying millions of gallons of crude oil, as it passed through a residential neighborhood. Reiche might be correct that the public does not know about the mechanics of shunting. And Reiche herself might not have understood the exact science of a shunt’s interaction with the train’s signaling system, even after studying materials teaching her how to make and install a shunt. But Reiche had to know that if her shunting efforts succeeded, she would have suddenly thrown the brakes on a moving freight train. Simply stated, a reasonable person would be immediately aware of the obvious risks of this conduct. The district court thus did not err in finding that the “obviousness of [the] risk” meant that Reiche was subjectively aware of the risk presented by her conduct. Harrington, 785 F.3d at 1304."

Totally correct, right?

That's what I thought upon first reading it.

But is it really?

Judge Lee seems to simply take it for granted that what Ms. Reiche did would cause the train to stop suddenly. He says it innumerable times: "sudden stop," "stop quickly," "stop suddenly," "suddenly stop a speeding freight train," etc. But as far as I can tell, nowhere in the opinion does it ever explain why the stopping of a train from a shunt needs to be -- much less invariably is -- sudden.

From what little I know about trains -- consisting largely (if not exclusively) from being an occasional passenger on them -- when a train learns that there's another train on the track ahead, it gets a signal to that effect, and comes to a stop. But, at least in my experience, that signal comes WAY WAY WAY in advance, miles and miles before the train actually has to stop. I've been on LOTS of trains that have had to come to a stop because (as the conductor announced) "there's a train on the tracks ahead." In none of those settings did the engineer slam on the brakes, or make the train stop suddenly, or anything of the like. There was plenty of time, the engineer slowly slowed the train down, we stopped for a while well in advance of the other train before moving on, blah blah blah. No problem at all.

Now, I'm not saying that's always the case if there's a train ahead -- or (as here) a false signal of a train on the tracks ahead. If, for example, the shunt was placed immediately in front of an oncoming train, so the engineer suddenly sees a flashing light that says "Whoa, train 500 feet ahead!", well then, yeah, you gotta jam on the brakes, and that's super dangerous for all the reasons Judge Lee sets forth at length.

But here's the rub; there's nothing in the opinion -- anywhere -- that suggests that shunting causes the type of latter type of braking ("sudden" and incredibly dangerous) as opposed to the former (gradual and totally safe). Moreover, on first principles, I'd think that unless the shunt is placed in front of an actively oncoming train -- which doesn't seem to be the case here, and would presumably be fairly rare -- then the braking would be gradual, just like usual (e.g., when there actually are trains present). No?

Plus, recall, the government here had to prove knowledge of the dangers. I'm not sure that the danger even existed, much less that Ms. Reiche in fact knew about it. Judge Lee says that "Reiche had to know that if her shunting efforts succeeded, she would have suddenly thrown the brakes on a moving freight train: because "[s]imply stated, a reasonable person would be immediately aware of the obvious risks of this conduct." Maybe I'm not a reasonable person, but I think I am, and at least based on my "common man" understanding of how trains work, I think I'm exactly the type of reasonable person who would not be "immediately aware" that shunting would likely (much less necessarily" result in someone "suddenly thro[ing] the brakes on a moving freight train" as opposed to slowly slowing down until the alleged obstruction (potentially many miles away) was eventually removed.

One last thing. Precedent. Based on what you know, which of the following is more dangerous; i.e., more likely to kill someone:

(1) Shunting a train in the manner Ms. Reiche did, or

(2) Pointing a laser at the cockpit of an aircraft flying at two thousand feet?

'Cause the Ninth Circuit has already held that a recklessness enhancement isn't available for the latter, and yet that seems at least arguably a fair piece more "obviously" dangerous than the former. No there too?

Were there evidence that a train was rapidly approaching (or even close) to the shunt, and that Ms. Reiche knew it, yep, I agree, obviously reckless, 'cause that'd require slamming on the brakes. But it seems quite unlikely (statistically) that a train would just so happen to be super close at the moment you placed the shunt and hence created the "train ahead" signal, and the mere possibility of that fact -- like the mere possibility that a pilot might be blinded by a laser from 2000 feet away -- doesn't seem to me to necessarily equate to recklessness.

Indeed, if your goal was to stop a freight train carrying oil, I'd put the shunt as far as possible away, so the train had to (1) slow down well in advance, (2) stop far away (e.g. at the nearest train "red light" generated by the shunt, and (3) sit there for a long time while someone travelled all the way to where the shunt was placed. That seems like it'd cause a lot more delay that putting a shunt right in front of a train, causing it to temporarily slam on the brakes and then slide up to a location in which the engineer could see that there was not, in fact, a train on the tracks.

But maybe that's just me.

In re G.Z. (Cal. Ct. App. - Nov. 30, 2022)

I share what I perceive to be Justice Stratton's unease regarding this case. Yes, the 10-month old infant had some injuries -- current and past subdural hematomas -- that were hard to explain. Mother says he fell out of the bed and once fell while walking. But the doctors think there might well be more to it than that, and suspect that the kid might be repeatedly beaten. So DCFS gets involved.

Ultimately, Mother, which previously had total custody of the kid (the father was out of the picture), gets 50/50 custody with Father, and things actually end up quite well. No more injuries. No more doctor visits. The child now has two parents involved in his life, so the matter ends up quite differently than a lot of these cases.

But Mother says that DCFS should never have gotten involved in the first place; that there was not sufficient evidence at all that the child's injuries were from beatings as opposed to something else.

The Court of Appeal agrees.

I think that I probably read the facts in somewhat the same way that Justice Stratton does. It does seem like the evidence of abuse is fairly slim. There are no witnesses, of course, but that's fairly typical. And, unlike some other alleged abuse cases, Mother seems like she's acting exactly how you'd expect a parent to act when her kid is vomiting all the time. Concerned, etc. Plus there's nothing disastrous at the home or anything like that once DCFS inspects the house.

So, overall, were I the trial judge, I might well conclude that DCFS hadn't established abuse by a preponderance of the evidence, which is what the standard is here.

But here's the rub:

We're not the trial court.

The trial court was there. It heard all the evidence. It concluded that the infant's injuries were the result of abuse, not something else.

That factual finding is entitled to a fair degree of deference.

Is such a finding unreviewable? Of course not. Sometimes, yeah, there's insufficient evidence, and the Court of Appeal accordingly rightly reverses the decision below.

But here, the trial court's finding has a decent amount of common sense behind it. Summarized aptly by the trial court's statement that, in its view:

"[T]he court has [a] child that has had multiple subdural hematomas, multiple bleeds while in the custody of the Mother, and since the child has been in the custody of the Father [and] since they’ve been sharing custody and they have a parenting plan, there hasn’t been any new injuries. . . . Mother does not have a reasonable explanation, while this child is in her sole custody, continued to have brain bleeds, continued to have subdural hematomas with multiple falls. . . . It’s just an ongoing pattern. Mother does something. Child gets hurt. Mother doesn’t do something. Child gets hurt. Multiple falls and this child gets hurt.”

Yeah. That's tolerable circumstantial evidence that the injuries might be from abuse or neglect, no?

The Court of Appeal, by contrast, seizes on the evidence from the DCFS's doctors to hold that there's insufficient evidence. Justice Stratton summarizes this testimony as follows:

"Regarding G.Z.’s older/chronic subdural hematoma, Dr. Imagawa opined the MRI brain findings of increased subarachnoid space “may be related to [G.Z.’s] developmental course, or may be the sequelae of previous head trauma; however, based on the available information it is difficult to differentiate which is more likely.” (Italics added.) Dr. Imagawa opined it possible the MRI brain findings of increased subarachnoid space “might put [G.Z.] at some increased risk to sustain subdural hemorrhage from more minor trauma.” (Second italics added.) She concluded that non-accidental/inflicted trauma as the cause of G.Z.’s older subdural hematoma “cannot be excluded.”"

The Court of Appeal then says:

"Dr. Imagawa essentially concluded G.Z.’s subdural hematomas may or may not be caused by trauma, and that she cannot conclusively rule it out. It is not Mother’s burden however, to exclude non-accidental inflicted trauma as a possible cause of G.Z.’s injuries. It is DCFS’s burden to prove by a preponderance of the evidence that non-accidental trauma was the cause of injury. Because Dr. Imagawa could not categorically establish the cause of the older/chronic subdural hematoma, she stated she could not rule out nonaccidental trauma. Lack of conclusive evidence does not equate to evidence of neglect proven by a preponderance. The burden is not on Mother to disprove what DCFS had failed to prove in the first place."

Okay. I get all that.

But I think this may overstate a bit the DCFS's evidentiary burden, as well as the overall posture of the case. Yes, the DCFS's expert never said that G.Z.'s injuries were definitely caused by abuse. But she did opine "that intracranial injuries such as subdural hematomas “in otherwise healthy infants/children from causes other than trauma are rare.”" Now, "rare" definitely doesn't mean "never," and if this were a case in which abuse had to be proven beyond a reasonable doubt -- or by clear and convincing evidence -- I would agree that the testimony comes far short.

But it's not. It's a preponderance of the evidence test. And the trial court, which heard all the evidence, decided that the injuries were more likely than not from abuse. She was the one who heard the experts testify live. She's the one who heard Mother's testimony on the stand and was in the best position to judge her credibility, and how she looked when she attempted to explain how G.Z. allegedly fell from the bed onto pillows (which the doctors testified would not have caused the injuries that G.Z. suffered).

And then there's the matter of the circumstantial evidence. When the infant is in Mother's care, there are consistent and repeated injuries, of the same type. But those suddenly stop once the child is with Father or Mother's visits are supervised.

That's some evidence, no?

Maybe, were I the trial court, I'd have nonetheless come to the conclusion that, even though abuse might be the cause, it wasn't more likely than not.

But I could potentially see a trial court rationally coming to a contrary conclusion based on the entirety of the evidence below.

Even though an expert couldn't categorically rule out all alternative explanations for the child's injuries.

So do I see why the Court of Appeal comes out the way it does? Sure. I somewhat had the same reaction, to be honest. (At least given the evidence as presented in the opinion.)

But still. There's a standard of review. And that's the tough part for me here.