Rattary v. Favro (Cal. Ct. App. - Nov. 29, 2023)

I actually think that the core problem here (if any) were the jury instructions, not the counsel's closing argument. If the instructions were right, then the trial court's admonition that counsel's arguments aren't the law (and to follow the instructions instead) would have solved the problem. By contrast, if the instructions were wrong, then reversal is probably required anyway -- regardless whether counsel for defendant made an argument based on those instructions during closing.

It's also somewhat weird to have an opinion that esoterically talks about the underlying legal issue that went to trial -- here, whether the risks to the plaintiff firefighters were something other than the inherent dangers of their job -- without any recitation of the actual facts of the case. Those are generally relevant, no? There was a whole trial, after all. Maybe a paragraph or two (or more) about what actually happened that gave rise to the lawsuit would be a nice background -- or introduction -- to the underlying legal issue, rather than a purely esoteric discussion of the doctrine untethered to any actual facts.

But, yeah, I could see how one might find the instructions here confusing (or inaccurate). Potentially, anyway. (Whether the jury was, in fact, likely confused by them would require me to know a lot more about the actual facts of the case and/or evidence at trial than is available here.)

In re Banks (Cal. Ct. App. - Nov. 27, 2023)

There's a lot to be said for this opinion. But, to be honest, there's probably a lot to be said for the other side as well.

It's a prison drug smuggling case. There are lots of those. Moreover, the facts here probably happen a dozen or more times a day.

Someone send a package to a California inmate using a fake return address. Why the fake return address? Because the package contains drugs. (In this case, Suboxone.) Prison packages all get inspected (duh), and the person sending it clearly knows that, so the drugs are concealed. But prison officials discover the drugs notwithstanding the attempted concealment.

They can't prosecute the person who sent the package because they don't know who it is and really have no way to find out (as long as they, smartly, left no fingerprints or DNA).

So they charge the inmate. Not criminally, but with a rules violation. The guy -- Mr. Banks -- loses 180 days of custody credits, plus loses some privileges.

He files a habeas corpus petition. His position is a fairly straightforward one: I didn't do it.

There you pretty much have it. There's no direct evidence that Banks asked for the narcotics to be sent to him. Pretty much obviously, because (1) we don't know who sent 'em, and (2) Banks says (duh) he didn't do it.

But is the circumstantial evidence enough? 

Most people don't unilaterally send drugs to inmates. That's just not really a thing, honestly. It's pretty much honestly a two-way street the overwhelming majority of the time.

But, hey, maybe some people do. At least sometimes. Maybe it's a birthday thing. Maybe they're just being nice. Just because you get something in the mail doesn't necessarily mean you asked for it.

Or, conversely, maybe the sender hates the recipient. Is trying to actively get 'em into trouble. I'm sure that happens at least sometimes.

So what do you think? Is the circumstantial evidence enough?

The Court of Appeal says: Nope. You gotta have more. Just getting drugs addressed to you in prison doesn't mean you were involved.

Which, as I said, in some ways, I understand. It could definitely be the unilateral act of someone who likes (or dislikes) you. That's a definite possibility, so I can see why the Court of Appeal comes out the way it does.

But, in truth, if this is indeed, the law, then man, people are definitely going to start sending a ton more drugs to prison. Because why not? It's easy to use a fake address, and at least sometimes, the officers will not discover the stuff. So you'll 100% get away with it. And if the inmate can't be charged either, it's a total no-brainer. Give it a shot.

Sure, don't be a moron. Don't use your own name. Use a fake return address. Hide the stuff as best you can. Wear gloves. Don't lick the stamp -- use water. And don't be an idiot and talk to the inmate about this on the (recorded) jail house phone. Just do it.

And, presto, the inmate has an immensely valuable jailhouse commodity. Or an easy-ish high himself.

Personally, if the drugs were concealed -- as they were here -- I'd normally find that fairly powerful (albeit circumstantial) evidence that the inmate was in on it. Because if they were successfully hidden from the officers, then unless the inmate was in on it, they'd likely be hidden from the inmate and well, which sort of defeats the purpose of the whole endeavor.

That said, I totally get the flip side as well. If this counts as sufficient evidence, then people should definitely send "hidden" drugs to inmates they hate. Because then the officers will (hopefully) discover them and, boom, add another half-year to the guy's sentence.

It seems to me like both options here have really big downsides. But you're pretty much forced to select one or the other as your controlling legal principle.

Because this kind of thing likely happens, I suspect, a lot. I have little doubt that, most of the time, it's the product of an express or implied agreement involving the inmate.

But not all the time.

So what solution?

It's a toughie.

For now, at least, the answer is: No punishment.

So ship away. Largely with impunity.

Z.V. v. Cheryl W. (Cal. Ct. App. - Nov. 22, 2023)

I procrastinate as much as anyone. Nonetheless, a notice of appeal is super easy to prepare and file. I don't understand why people wait until the last minute to file one.

Like here.

People v. Banks (Cal. Ct. App. - Nov. 20, 2023)

"Doe was born in 2003. She lived with her mother in Oakland. Doe’s mother was abusive toward her and when Doe was 10 years old, her mother “kicked her out of the house.” When Doe was 11 years old, she became a prostitute. The Sacramento Sheriff’s Department arrested Doe and returned her to her mother. She was not welcome there and Doe returned to a life on the streets.

Doe continued to work as a prostitute. She worked for her first pimp at the age of 12. She left him when he became violent. She worked for a second pimp but left him after he too, became violent.

In September 2018, Doe met appellant. At that time, she had been working by herself as a “renegade,” that is, a prostitute who works without a pimp. Doe was 14 years old. Appellant was 35 years old. Doe trusted appellant and gave him her telephone number. Later that same day, appellant picked Doe up in his Jaguar and took her shopping for boots. As they were driving, Doe received a telephone call from a police officer. Appellant immediately changed Doe’s phone number without her consent. 

Doe began working as a prostitute for appellant that same day. Appellant set the rules that Doe was required to follow. He expected her to hold a door open for him. When she did not, appellant got mad and raised his hand like he was going to hit her. He also had rules regarding how Doe was to dress and wear her hair. He told Doe to wear different colored wigs every night, as well as revealing clothing, and high heel shoes. He told her to call him “Daddy.” He controlled what she could and could not do, who she could speak to, when she worked, when she slept, and when she ate. He physically battered her on three occasions."

An 11-year old prostitute. Just: Wow. 

Tak Chun Gaming Promotion Co. v. Long (Cal. Ct. App. - Nov. 17, 2023)

The Court of Appeal makes only one edit to this published opinion, and it softens it. A tiny bit.

"It is ordered that the opinion filed herein on October 26, 2023, be modified as follows:

On page 11, in lines 5 and 6 of footnote 4, delete the phrase “Tak Chun distastefully implies” and replace it with the phrase “Tak Chun’s comparison could be read to distastefully imply” so the full footnote reads as follows:

Tak Chun’s comparison to our Supreme Court’s decision in In re Marriage Cases (2008) 43 Cal.4th 757 is ill conceived, for this decision was an acknowledgment that persons of different sexual orientations are entitled to the equal protection of the law authorizing marriage rather than, as Tak Chun’s comparison could be read to distastefully imply, an illustration of a “substantial shift of public acceptance or morality” in California." 

Escamilla v. Vannucci (Cal. Ct. App. - Nov. 16, 2023)

My general rule is this: Don't sue lawyers for malicious prosecution. Pretty much ever. You're much more likely to get SLAPPed than you are to actually prevail.

Like here.

People v. Villegas (Cal. Ct. App. - Nov. 15, 2023)

Imagine making the following call to your client after today's opinion by the Court of Appeal:

"Good news! We won part of our appeal. We reduced your molestation sentence by 30 years!

Now your sentence is only 172 years to life."

Nicoletti v. Kest (Cal. Ct. App. - Nov. 14, 2023)

When it rains in Los Angeles, there are sometimes (often?) places in which there's a visible current of water. Maybe on the street, maybe on the sidewalk, maybe in a driveway.

Here's two things you should know:

(1) Don't walk there. Currents are often surprisingly powerful. They can knock you down and/or push you downstream. You can potentially be severely injured, or even killed. Walk around it.

(2) If you ignore (1), you can't sue the property owner. It's an open and obvious danger.

Act accordingly.

California Const. & Indust. Minerals Ass'n v. County of Ventura (Cal. Ct. App. - Nov. 13, 2023)

It's been a lazy series of days for the Ninth Circuit and California appellate courts lately. Before today, the Ninth Circuit published a grand total of two opinions in the last ten days. And on Thursday and Friday, the Court of Appeal published . . . nothing. Tough to talk about published opinions that don't exist.

Today, at least, sees one published opinion from the Ninth Circuit, and (thus far) another one from the Court of Appeal. The latter is slightly interesting. Usually, environmental challenges are brought by anti-development or wildlife advocates; for example, to stop a housing or commercial development.

But this opinion involves the exact opposite.

Ventura County passed an ordinance that set aside 163,000 acres of less developed land so that wild animals can roam around without being disturbed by human activities. A pro-business entity -- the California Construction and Industrial Minerals Association -- sued, claiming that the ordinance was, among other things, inconsistent with the California Environmental Quality Act (CEQA), which, as you likely know, is a pro-environmental statute. According to the plaintiff, the County had to do an extensive study before setting aside the land to protect wildlife.

The trial court dismissed the lawsuit, and the Court of Appeal affirms. Setting aside land for wildlife does not harm wildlife. That's basically the point of two categorical exemptions from CEQA. (Exemption No. 7: "Actions taken by regulatory agencies as authorized by state law or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment." Exemption No. 8: "Actions taken by regulatory agencies, as authorized by state or local ordinance, to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment.") Plus the "common sense" exception, which seems equally applicable here.

Sometimes people file CEQA actions merely to delay things, even when there's not a high likelihood of success. Perhaps that was the goal here. Or perhaps the plaintiffs radically poorly assessed the probability that they would win this one.

In re Marriage of Motiska & Ford (Cal. Ct. App. - Nov. 8, 2023)

Even from just reading the opinion -- which forcefully argues in one particular direction -- I can definitely see both sides of this dispute, and why each might well be reasonable. But, on the whole, I probably think that Justice Streeter is right.

It's a family law dispute, so a tiny bit of background is probably helpful. In California, community property gets split 50/50 on divorce, whereas separate property goes 100% to the owner. But sometimes, separate property (say, an inheritance) gets used to fund a community asset (for example, as a down payment for a house). In that event, the amount of the separate property "gifted" to the martial estate gets refunded upon divorce to the separate ownership of the contributing spouse.

There are lots of reasons for that rule, and it's fairly well-established.

Today's opinion, however, involves a slight twist on the typical factual setting.

One spouse owns a company -- call it Company A -- before marriage. So that's his separate property. During the marriage, Company A becomes Company B. Basically the same business, but a different name. (He's probably doing this for asset protection reasons, because Company A is a sole proprietorship, which has individual liability concerns, but his motive isn't really all that important to our analysis.)

Now, if the spouse gifted Company A to Company B, he'd be entitled to a refund (upon divorce) of the value of the separate property (A) he contributed to the marital asset (B). But, here, he didn't do that. It wasn't a gift. Rather, he sold Company A to Company B.

Well, then, you don't get a refund. It was a sale. You already got as your separate property whatever the marital asset (B) paid for A.

But here's the rub: Company B paid exactly $1 for Company A.

We all know why they did it that way. It's nominal consideration. They want it to be a sale (rather than a gift or merger) for liability and other reasons, but they also want the sale price to be meaningful in order to avoid transfer taxes or other complexities. So it's essentially a gift, but it's nonetheless legally a sale.

There's zero doubt that Company A was in fact worth tons more than $1. But that's nonetheless what the sale price was. Do you get a refund of separate upon divorce, or not?

The Court of Appeal says: No, you don't. It was a sale. You set the price. So that's what it was worth. Period. It was a sale, so no contribution right upon divorce.

As I said, I get that. It's an overly formalist answer, because I'm sure that there was, in fact, value to A, and the nominal purchase price essentially was a gift -- in anything but name. Hence the argument that the usual contribution rules should apply.

But, in the end, I'm persuaded by the old aphorism -- which, to be clear, is found nowhere in the Court of Appeal's opinion -- that "you pays your money and you takes your chances." The spouse here called it a sale and set the price at $1. That was his call. When you call it a sale and say that the value of A is $1, well, okay then, that's what we'll find. The fact that the truth is probably otherwise doesn't really matter at this point. You thought, and said, otherwise at the time. Your call. Sorry it didn't turn out so well for you in the end, but that's life.

Maybe next time, call it what it actually is, and the result would be different.

Or, perhaps, see a lawyer before selling your business to yourself. One who knows a little bit about family law, maybe. Because it might well matter. As it did here.

Coronavirus Reporter v. Apple (9th Cir. - Nov. 3, 2023)

I'm not really sure why this opinion meets the standard for publication.

Plaintiffs want to sell apps called the "Coronavirus Reporter" and "Bitcoin Lottery" on Apple's App Store. But Apple doesn't allow bitcoin apps at all, and does allow COVID apps unless they're from a recognized health entity.

So plaintiffs sue. They (and their counsel) file a slapshot complaint that alleges antitrust violations with fifteen different alleged "relevant markets" and breach of contract even though they can't identify any part of the contract that Apple (which wrote the thing) allegedly violated. The district court dismisses the suit, and in a dozen pages, the Ninth Circuit affirms.

It's a pretty straightforward case, and it loses for fairly straightforward, easily-applied reasons.

No harm in publishing the thing, I guess. No real benefit -- that I can see, anyway -- either.

Hanagami v. Epic Games (9th Cir. - Nov. 2, 2023)

You can't copyright a musical tone, but you can copyright a musical composition -- or even a particular set of a dozen or so musical tones put together in a particular way.

Similarly, you can't copyright a particular human pose -- e.g., hands on your hips -- but you can copyright a particular set of human poses choreographed together in a particular way.

So holds the Ninth Circuit, which reversed the district court's dismissal of a complaint alleging that the makers of Fortnite had illegally copied one of his copyrighted dance moves for an "emote" available in the game.

You can read Judge Paez's 28-page, single-spaced opinion if you'd like. It's well-crafted and smart.

Or, if you have less time, just look at the following YouTube video, a link to which is contained in one of the footnotes of the opinion and which was created by counsel for the plaintiff. The video compares the Fortnite emote at issue to portions of the copyrighted dance moves.

https://www.youtube.com/watch?v=vXYDr9o_FJY

Pretty darn similar, eh?

The old saying is that a picture is sometimes worth a thousand words. To me, the video here is worth the 7341 words in Judge Paez's opinion.

Maybe even more.

Zachary H. v. Teri A. (Cal. Ct. App. - Nov. 1, 2023)

It saddens me to know that there are cases, like this one, in which a son obtains a restraining order against his mother. I've read a ton of DVRO cases over the years, obviously, but don't recall seeing a situation like that before today.

Not that children can't potentially fear -- or be harassed -- by their parents. Still. It's depressing to know that things sometimes come to that.

To make things worse, after I read a tiny line on page 12 of the opinion, I learn that the mom also has an out-of-state restraining order entered against her by her daughter. Ugh.

What's also a little unusual is that both of the parties here have lawyers. Lots of these cases (and appeals) are filed pro per. Yet another downside of the whole situation: money flushed down the drain.