Abney v. State Dept. of Health Care Svcs. (Cal. Ct. App. - Jan. 31, 2024)

The Court of Appeal is right, and Legal Aid is wrong. It's technically "income" to you even if you don't get the money. So if $600 gets garnished from your monthly Social Security check to pay your IRS debt, that $600 still counts as part of your monthly income to determine what welfare programs for which you might or might not be eligible.

Now, Legal Aid has a point; that's somewhat silly, because you're still poor, since you don't actually get the $600, so it seems a bit crazy to say that you're not poor because "in theory" you get an extra $600 a month (that you actually don't receive).

But, yeah, that's the rule. For better or worse.

In re: A.K. (Cal. Ct. App. - Jan. 30, 2024)

The opinion isn't really about this part, but I was struck by the final words of this sentence, which begins the Court of Appeal's statement of facts in this dependency case:

"When the minor was born in April 2022, the Agency received a report that mother tested positive for methamphetamine, benzodiazepines, and sexually transmitted diseases."

We clearly care that a mother is using drugs while pregnant. We also care, medically, if she has STDs while pregnant. You just don't usually see references to STDs in these dependency cases. It's typically all about the drugs (and/or abuse).

The opinion doesn't mention the STD thing apart from this one reference. Still, somewhat surprising, and left me wondering if having an STD while pregnant was one of the things that might get you referred for possible dependency proceedings.

U.S. v. Virgen-Mendoza (9th Cir. - Jan. 26, 2024)

This case is unusual if only because you usually don't see someone get sentenced to federal prison for trying to smuggle someone into Mexico.

Though if the reason you're trying to smuggle that person into Mexico is because he just shot and killed a police officer in the United States, yeah, that'll get you in trouble for sure.

Kinney v. City of Corona (Cal. Ct. App. - Jan. 24, 2024)

This (alleged) strategy might perhaps work for a while, but there's a serious risk of it all crashing down on you at some point.

Background: One well-known strategy was to file hundreds of separate unfair competition lawsuits against business owners in an attempt to obtain (extort?) small-scale attorney fee settlements from the defendants. That worked for a long while, but several previously successful lawyers ultimately lost their law licenses as a result.

Another well-known strategy is to do the same thing with serial lawsuits under the Americans with Disabilities Act. But that ultimately resulted in reactive measures against those participants as well, with some of them finding themselves criminally convicted.

Today's opinion from the Court of Appeal involves an (allegedly) similar strategy under the California Public Records Act. According to Justice Fields: "[The City of Corona]claimed that Kinney and Toraason were engaged in a “shakedown scheme” to collect thousands of dollars in attorney fees from numerous California public agencies based on denied requests for public records. According to City, the alleged “scheme” worked like this: A petitioner like Kinney would find an internet news article reporting a crime; the petitioner would send an e-mail to the public agency referenced in the article, requesting the name of the crime victim; when the agency denied the CPRA request “on the grounds that the information is privileged, confidential, exempt, or otherwise non-disclosable,” the petitioner would “immediately file” a “cookie-cutter” petition “accompanied by a request for a [filing] fee waiver” and asking the court to order the agency to pay the petitioner’s attorney fees. . . .

It is not clear when Kinney first made a “ransom” or monetary demand of City, but the record includes a February 15, 2020 e-mail from Higginbotham to Toraason, referencing a “settlement demand” from Kinney for $6,500. In the e-mail, Higginbotham said it was “preposterous” that Toraason could have incurred $6,500 in attorney time on the case at that point. . . .

At that point, Higginbotham believed Borchert, Toraason, Austin, and Kinney “were all complicit in a vast, statewide shakedown scheme, using the same cookie-cutter petition template, and substantially identical tactics. City claimed it discovered “a new variant on the scheme by which Austin would e-mail” CPRA requests from an e-mail-address “plainly calculated to trigger spam blockers . . . and thereby deprive public agencies of the opportunity to respond to the [CPRA] request until after a lawsuit had been filed and the ransom demanded.”"

Here, the lawyers get paid. But, after the Court of Appeal's reversal, only $2500, rather than the $43,000+ awarded by the trial court.

As I said, I suspect that (alleged) efforts like this work. Until they don't.

P.S. - I think it might be especially dangerous to try things like this with public entities. They have a lot of power. And they don't need to be economically rational in how they respond to demands that they believe are extortionate.

Center for Food Safety v. Regan (9th Cir. - Jan. 23, 2024)

The Ninth Circuit's panel opinion was in 2022, with Judge Miller filing a partial dissent. Judge Miller voted to grant panel rehearing (which was denied), and all of the judges -- including Judge Miller -- voted/recommended denying en banc review.

Nonetheless, some Ninth Circuit judge voted to take the case en banc, but lost the vote, so on December 5 of last year, the Ninth Circuit entered an order denying the petition for en banc review.

That Order from December 5 of last year was just posted today.

Oops.

Snitko v. United States (9th Cir. - Jan. 23, 2024)

I'm not one of those people who believe that the federal government was behind 9/11 or that the "deep state" (and/or Illuminati) controls the nation, but I do believe that the government substantially oversteps at times. When, in pursuit of (usually) legitimate objectives, the government goes way, way too far.

This is one of those times.

A company opened a business in Beverley Hills that rented out safe deposit boxes, with incredibly tight security. Seems reasonable. But, unlike regular banks, which also rent safe deposit boxes, this company "did not require customers to provide personal information, social security numbers, driver’s licenses, or any other form of identification in order to rent a box."

Predictably, some -- perhaps many -- of the people who rented those safe deposit boxes were criminals, who had cash or drugs or whatever that they didn't want connected to their name. Moreover, the company probably knew (or at least suspected) as much.

After taking down various individuals who had safe deposit boxes at the place, the feds decided that they wanted to take down the whole company as well. So they got a warrant and raided the place, and opened up all the safe deposit boxes. Presumably to find -- and seize -- whatever drugs and other contraband was there.

I bet there was some. Fair enough.

But the United States decided to go further. It decided to seize, and declare forfeit, every safe deposit box that had more than $5000 worth of stuff in it. Even from totally legitimate customers. Like:

• Paul and Jennifer Snitko, who used their USPV box to store legal documents, watches with sentimental value, hard-drive backups, coins, and gold jewelry. They used USPV “because [their] bank had a waiting list for a safe deposit box, [they] live in a wildfire prone area . . . and [they] require a place to store [their] wedding bands when engaging in sports activities . . . .”

• Tyler Gothier, who stored “silver and other personal property” in his box and used USPV due to its convenient location. 

• Joseph Ruiz, who stored $57,000 in cash in his box and used USPV because he was concerned that “the COVID pandemic would make it impossible for [him] to withdraw [his] funds from a bank account.” 

• Michael Storc and Jeni-Verdon Pearsons, who stored “approximately $2,000 in cash, as well as approximately $20,000 worth of silver,” along with “personal documents” in their box. They used USPV because they needed a safe place to keep the silver. 

• Travis May, who stored $63,000 in cash, $100,000 in gold, and various documents in sealed envelopes in his box, and used USPV as an “alternative location to access valuables in case of emergencies.” 

These legitimate customers filed claims forms with the United States seeking a return of the stuff in their security deposit boxes. What did the feds tell them to do? Pound sand. Instead, the United States filed forfeiture proceedings against them, seeking to keep the valuable contents.

Eventually, the plaintiffs here get their stuff back. But they have to go through extensive proceedings and litigation to make that happen. Which ain't cheap. Yet is, in my view, entirely unnecessary.

The case in the Ninth Circuit is about whether the plaintiffs can also get an order that requires the feds to destroy their records about what they found in the safety deposit boxes of these legitimate customers, and the Ninth Circuit says that they can.

But my overall reaction is to the underlying seizure proceedings themselves. I'd spank the government for its recalcitrance in giving the money back. Hard.

There's massive incentive for the federal government to want to keep seized money, even when there's a darn good chance that the assets belong to entirely legitimate people. Courts should minimize that incentive and keep the government honest. Merely giving the money back after extensive and risky legal proceedings isn't enough. There's got to be additional downsides as well.

Serious ones, IMHO.

People v. Campos (Cal. Ct. App. - Jan. 22, 2024)

I'm certain that there are many people who would categorically agree with Justice Poochigian when he says in this opinion:

"The interests of justice are not furthered by excluding truthful, relevant evidence needed to prosecute criminals."

Nonetheless, to me, that statement seems far too broad. For example, we exclude lots of truthful evidence when there's a violation of Miranda, and I personally think that opinion advances the interests of justice. More generally, I think it advances the interests of justice to exclude even accurate confessions that are, for example, beaten out of robbery suspects by the police, even if the accuracy of that confession is totally confirmed by the resulting discovery of the stolen loot at the location the beaten suspect reveals, and even if that confession is necessary for the suspect's conviction. The price is too high.

Now, in this particular case, I agree that the failure to provide post-seizure notice in the particular manner required by state law doesn't require suppression or invalidation of the conviction. I might even also agree that, as a general matter, the interests of justice are often not furthered by excluding truthful and relevant evidence needed to prosecute criminals.

But just as I wouldn't say that NBA players are over 6 foot tall -- since some are not -- I also wouldn't say (in a written opinion or otherwise) that the interests of justice are thwarted when truthful, relevant evidence is excluded.

People v. Heltzer (Cal. Supreme Ct. - Jan. 22, 2024)

Read this opinion -- or at least the first dozen pages or so -- and see whether you think the defendant:

(A) Wouldn't have done the same thing but for his initial religious upbrining;

(B) Wouldn't have done the same thing if he wouldn't have abandoned that upbringing;

(C) A mix of both (A) and (B).

(D) Neither (A) nor (B).

Personally, I think that (D) is the answer least likely to be true.

Regardless, the defendant is sentenced to death, and the California Supreme Court unanimously affirms.

People v. Fouse (Cal. Ct. App. - Jan. 18, 2024)

This is a pretty good opinion to figure out where you generally stand on the resentencing provisions of Section 1172.6, which "amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life."

On the one hand, the crimes are (to me, at least) horrific home invasions -- plus the attempted murder of police officers while evading arrest -- and I'm more than happy for the perpetrators to be incarcerated for a relatively lengthy period of time.

On the other hand, the defendant here was simply the getaway driver, and she has already served more than 14 years in prison.

Whatchathink?

Martinez v. ZoomInfo Technologies (9th Cir. - Jan. 18, 2024)

If I'm reading the tea leaves correctly, unless there's a surprising panel draw, the era of being able to file an interlocutory appeal of anti-SLAPP motions in the Ninth Circuit is about to come to an end.

Olson v. Saville (Cal. Ct. App. - Jan. 17, 2024)

I'm totally having my students read this opinion from the Court of Appeal in my "Law of Surfing" class.

Assuming, arguendo, the Dean would ever let me teach it.

U.S. v. Marin (9th Cir. - Jan. 17, 2024)

I understand and appreciate that, on the high seas, the United States can exercise jurisdiction over "stateless" vessels. So if, for example, you're carrying a ton of drugs, you're 655 miles west of the Galapagos Islands, and your ship isn't flying the flag of -- or registered in -- any particular nation, then by not subjecting yourself to the jurisdiction of any particular nation, you're de jure subjecting yourself to the jurisdiction of every nation. So any nation can board your vessel and prosecute you for having the drugs, even if those drugs weren't necessarily intended for that particular nation. That rule likely comes out of the pirate days, and okay, I can get on board for it.

But, here, the facts seem a little different. The two people on the go-fast boat (with the cocaine) are clearly from Ecuador, and the closest landmass is Ecuador. When the U.S. Coast Guard wants to board the ship and search it, it asks permission of Ecuador, which says that it's indeed an Ecuadorian ship and gives the U.S. permission. When the Coast Guard asks the captain(s) of the ship what nationality their ship is from, they both say: "Ecuador."

But, after the Coast Guard searches and finds the cocaine, the Coast Guard again asks Ecuador whether the ship is from Ecuador, and Ecuador then says it can "neither confirm nor deny" that it's from there.

Which, according to the Ninth Circuit, means -- under federal law and permissible international law -- that the ship is stateless, and its occupants can be prosecuted by every nation in the universe.

Doesn't it seem weird, though, that prior to searching, the U.S. was allowed to do so only after Ecuador said it was a ship from Ecuador . . . but, thereafter, said that Ecuador had no idea if it the ship was from there? Doesn't this rule also give rise to easy circumvention of jurisdictional requirements? If a state can simply "refuse to confirm or deny" whether a ship is from that country, and thereby grant jurisdiction to every other nation, how is that at all consistent with fundamental fairness, and how are the occupants of that ship supposed to know that they're suddenly subject to the jurisdiction of whatever nation -- say, Iran, or North Korea -- feels like prosecuting them?

Plus, at a more fundamental level, isn't this ship obviously from Ecuador? It just seems weird to say that when every indication in the universe is that the ship's from Ecuador, we can just ignore that fact as long as Ecuador itself doesn't feel -- for whatever reason -- like responding to our inquiries about whether the ship is in fact from Ecuador, like every single objective measure unambiguously suggests.

I know that the law on the high seas is weird, and I don't pretend to be an expert on it.

But still. This seems strange.

Williams Sport Rentals v. Willis (9th Cir. - Jan. 16, 2024)

This is yet another case where someone dies on a jet ski; in this case, in South Lake Tahoe. Just like the jet ski case I discussed back in 2009, this is yet another case in which the Ninth Circuit applies the federal Shipowner’s Limitation of Liability Act and holds that the owner of the jet ski is only liable to the injured person for, at most, the value of the jet ski.

So, here, the dead person gets, at most, $5000.

This is, of course, absurd.

I know that this request will fall upon deaf ears. But would someone in Congress please file a bill to amend the statute so it doesn't apply to stupid jet skis; or, for that matter, any other tiny little vessel. A plethora of small boats are already exempt from the statute. It's crazy that jet skis -- which are tiny but do not carry "passengers for hire" -- are nonetheless covered.

But, I get it, it's only some dead people and their families. Why would Congress at all care about that.

Punchbowl, Inc. v. AJ Press (9th Cir. - Jan. 12, 20224)

Two days ago, I somewhat critiqued Judge Nelson's analysis of when circuit precedent is sufficiently inconsistent with a subsequent Supreme Court decision to no longer bind a panel.

Today, Judge Bress authors a lengthy opinion that, in my view, is exactly the right way to do about doing precisely that.

Personally, I hope (and think) that the defendant will prevail in this trademark dispute, just as it did in the district court and in the Ninth Circuit's original opinion. I'm not at all sure why the plaintiff even thinks it's worth the money to litigate this one.

But Judge Bress nonetheless thinks that the intervening Supreme Court opinion requires that the district court take another look at this one, notwithstanding the panel's original affirmance, and presents a darn good argument for that result.

Regardless, it's a good exegesis on how intervening and circuit precedent properly interact.

Tornai v. CSAA Ins. Exchange (Cal. Ct. App. - Jan. 11, 2024)

Does the trial court here know something that I don't?

Ms. Tornai gets into an auto accident with someone with a $25,000 insurance policy. She settles for the $25,000 policy limits, but says that her damages are above that. So she makes a claim under her own auto policy for an accident with an underinsured motorist.

The insurance company (CSAA) is willing to pay, but the only medical expenses that plaintiff submits are bills for a little over $30,000, and as to those, Medi-Cal paid them, at a discount, so legally, plaintiff can only recover the (discounted) amounts Medi-Cal actually paid. Plaintiff's lawyer, however, apparently refuses to provide CSAA with the documents that show how much was actually paid. The lawyer instead insists that CSAA pay a policy limits demand of $275,000, to which CSAA -- not surprisingly -- says, "No thanks."

So CSAA and plaintiff have a dispute over the amount of uninsured motorist (UM) benefits under the policy, and California law (and the policy itself) requires arbitration of that dispute. So when plaintiff sues, CSAA files a motion to compel arbitration.

Which the trial court denies. The trial court agrees with plaintiff that CSAA is just stalling, and should pay the amounts "indisputably" due right now, before arbitration. So the trial court says that the whole shebang -- bad faith plus the UM amounts due -- will be resolved in court instead of arbitration.

The Court of Appeal reverses. In an opinion by Justice Richman that seems indisputably correct. The law requires that the amount of UM payments due -- which is, in fact, clearly disputed, since plaintiff is demanding tons more than the $2,000+ CSAA has offered to pay -- be arbitrated, so, yeah, that dispute goes to arbitration.

I'm honestly not sure how the trial court could have possibly thought otherwise.

Now, it's clear that the trial court was miffed at CSAA, and thought that it was, in fact, just stalling, and hoping to benefit by delay. But at least on the cold paper record, it doesn't seem that way to me. CSAA's request for the actual Medi-Cal payment amounts -- which plaintiff's lawyer refused to provide -- seems entirely reasonable. Whereas plaintiff's claim for a whopping $275,000, right now, for $30,000 (max) in medical expenses seems a bit excessive, or at least gives rise to a legitimate dispute.

Reading between the lines, maybe it's also that CSAA was a bit sloppy in its motion to compel, since its moving papers at least ostensibly requested arbitration of the "entire" lawsuit, including the bad faith claim (not just the claim for UM benefits). CSAA made clear in its reply brief that's not what it wanted, but perhaps that confusion -- plus the purported stalling -- gave rise to the trial court's attitude towards the whole thing. Baby and the bathwater, and all that.

Still. Justice Richman says that the UM claim goes to arbitration, then we'll figure out later if there's any bad faith. Seems entirely the right way to go.

Garcia v. Tempur-Pedic North America (Cal. Ct. App. - Jan. 8, 2024)

I do not have strong qualms about the merits of this opinion. The trial court included as cots various fees for depositions that, for one reason or another, did not, in fact, go forward. That seems generally fine to me -- or at least not categorically impermissible -- for the reasons Justice Raphael identifies.

But as I read the opinion, one thing kept -- and keeps -- confusing me.

Justice Raphael repeatedly says that one of the non-party deponents, a treating physician named Dr. Tan, was served by the defendant after he died. For example: "Tempur-Pedic also requested costs for service of process on . . . Dr. Randall Tan ($306.82);" "[Defendant] represented that Tan was identified as a treating physician and served before they were aware he had died;" and "As to Tan, the court awarded the costs because there was no indication Tempur-Pedic was aware of his death when they served him."

But, as a nonparty witness, Dr. Tran needed to be personally served with the subpoena. So there's no way the defendant actually did that if he was dead.

So I went back and checked the briefs. Which made clear that what everyone is talking about are the costs of attempting to serve Dr. Tran.

Which makes more sense.

To make things clearer, I might add "attempting" to the various places in the opinion where it says that the trial court granted costs for "serving" Dr. Tran.

If only for slowpokes like me.

Munoz v. Superior Court (9th Cir. - Jan. 9, 2024)

Judge Ryan Nelson is right on the merits, but pulls a neat little doctrinal trick that's probably a bit too slick for my tastes.

Plaintiffs sue some state court judges saying that their bail was too high and seek injunctive relief. You can't do that. Eleventh Amendment. State court judges are immune.

There's an exception to this doctrine: Ex Parte Young. But Judge Nelson is right; that exception doesn't apply where, as here, there's no reason to sue the state court judges and the relief that plaintiffs seek can properly be obtained on appeal in state court. If you think your bail is too high, appeal it. State court, not federal.

All good and right, in my view.

The one problem with this position -- and the one I'm confident plaintiffs are pretty much entirely banking on -- is the Ninth Circuit's 2004 opinion in Wolfe. That case also involved a lawsuit seeking injunctive relief against state court judges (this time for allegedly unconstitutionally applying California's Vexatious Litigant statute), and although that action was largely dismissed for a variety of reasons, the Ninth Circuit held that two state court judges, were not immune from suit under the Eleventh Amendment, and indeed reversed the dismissal of the lawsuit as applied to Chief Justice George. So holding by citing . . . Ex Parte Young.

Judge Nelson's opinion expressly concedes that "Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004), can be read to hold that the Ex parte Young exception allows injunctions against judges acting in their judicial capacity." But he responds by saying that this Ninth Circuit holding -- which otherwise would bind the panel -- "is clearly irreconcilable with Whole Woman’s Health v. Jackson, 595 U.S. 30 (2021), and thus overruled."

But here's the thing. Jackson didn't make any new law. At all. The relevant portion of Jackson simply cited and quoted from Ex Parte Young itself, which itself held that "normally" you can't sue state court judges, particularly when you can directly appeal.

No kidding. Everyone knows that already. 'Cause Ex Parte Young said it. Yet the Ninth Circuit in Wolfe said that, in this setting, you can sue state court judges. So it distinguished Ex Parte Young.

In this setting, I don't think it's right for Judge Nelson to say that Jackson overrules circuit precedent, thereby relieving the panel from its obligation to follow it. Since Jackson indisputably said absolutely nothing now. 

When Case X distinguishes Case Y, and then Case Z later quotes Y, that doesn't mean that X is no longer good law. Quoting -- and even relying on -- a prior precedent doesn't overrule a case that distinguishes that precedent. That says that this situation is different. The two are not thereby "clearly irreconcilable."

Now, it might well be that the purportedly distinguishing characteristic identified in X no longer works given Z because the same distinguishing characteristic present in X was also present in Z, and yet the higher court still came out the same way as Case Y (e.g., dismissed the suit). Fair enough. But two things. First, you've got to say that. Second, it's got to be true. And neither of those things exists in the present case. Judge Nelson doesn't identify the purported distinction in Wolfe, nor does he say -- nor is it true -- that that same distinction existed in Jackson. So the cases are not, in fact, "clearly irreconcilable" and hence circuit precedent overruled.

I readily admit that the opinion in Wolfe with respect to judicial immunity is, uh, slim, and on this particular point not especially explanatory. A fact that's probably slightly embarrassing to Judge Willie Fletcher, who authored the opinion in Wolfe and -- coincidentally enough -- is on the panel in the current case, and who joins Judge Nelson's opinion in full (an opinion that holds that Judge Fletcher's prior opinion is not good law). But from reading Wolfe, it seems to me that Judge Fletcher's point with respect to the immunity issue -- and why he (and the rest of the panel) thought that Ex Parte Young did not apply -- is because the judicial duties there were purportedly administrative, at least in part, rather than judicial, which was probably a bit true with respect to the state vexatious litigant list and is a fairly standard distinction applied to the usual Ex Parte Young rule. (An exception that explains, in part, why Ex Parte Young itself said that normally you can't sue state court judges, rather than holding that you categorically can't sue them.) Moreover, Jackson didn't involve that purported distinction at all; it was a straightforward "enjoin state judges from hearing private abortion lawsuits" claim.

In short, X (Wolfe) said that Y (Ex Parte Young) didn't apply for Reason Q, and although Z (Jackson) cites Y (Ex Parte Young), Z both didn't discuss Reason Q nor itself involve a fact pattern giving rise to Reason Q.

Which means that circuit precedent isn't overruled, and the panel is still bound.

Mind you, I think that Reason Q probably doesn't apply in the present case either. Which is to say that Judge Nelson's current disposition is likely right; the present case isn't really like Wolfe, and so the rule applied in Jackson and the "usual" rule from Ex Parte Young applies.

But that's a very different thing that what Judge Nelson says. In my view, if the facts of Wolfe come up again (e.g., in Arizona), the panel is bound to come out the same way. Perhaps, honestly, rightly so, as it might well be -- maybe not, but maybe -- that the administrative nature of a vexatious litigant list may be a legitimate exception to normal judicial/Eleventh Amendment immunity. Regardless, the panel is bound, and an en banc court has to figure out if Judge Fletcher got it right.

By contrast, Judge Nelson says that Judge Fletcher is wrong, period. That there's no distinguishing characteristic between Wolfe and the "normal" rule in Ex Parte Young, even though Judge Fletcher said there was.

But the Supreme Court in Jackson said so such thing. At all. Either expressly nor by implication.

So one might rightly say that Wolfe is distinguishable, but it's wrong to say that Wolfe was necessarily overruled by Jackson merely because they cited the exact same cases.

P.S. - On a totally unrelated point, I always find it funny when I have to say Judge Fletcher or Judge Nelson's full names. I was a clerk back when Judge Fletcher's mother was on the court, before Judge William Fletcher (I hope he doesn't mind me using "Willie" on occasion) was even appointed, so I sometimes feel compelled to say "William" lest anyone think it's "Betty" Fletcher, even though she's been deceased for some time now. Relatedly, I always say "Ryan" Nelson because Judge Dorothy Nelson is still a senior judge on the court, even though I don't think she's authored an opinion for the past year or two. Plus there was Judge Thomas Nelson, who was also on the Ninth Circuit when I was a clerk. So, in my mind, you always gotta make sure everyone knows which Fletcher and/or Nelson you are talking about. Oh, and, yet more coincidentally, guess who joined Judge William Fletcher's opinion in Wolfe? Yep, Judge Nelson. Thomas. (Not Ryan, obviously).

Sarmiento v. Superior Ct. (Cal. Ct. App. - Jan. 9, 2024)

"Sarmiento was raised by her mother and stepfather. Between the ages of five and eight, along with a group of other children, she was sexually abused by her 30-year-old stepbrother on a repeated basis. Sarmiento did not report the abuse to anyone until she was an adult.

Sarmiento’s stepfather, who she was close to, died of a heart attack when she was 13. She was hospitalized and saw a psychologist after she threatened to commit suicide by jumping off a bridge. At about the same time, she began using methamphetamine, later selling it with her brother Oscar. A few years later, while still in high school, she was gang raped at a party.

In 2013, after being arrested for selling drugs, Sarmiento completed a 120-day residential substance abuse treatment program. She maintained her sobriety for nearly six years, but relapsed in 2019 as a result of an unhealthy romantic relationship with a meth addict who used in her presence and encouraged her to join him. This led to four hospitalizations in that year and two robbery convictions in 2020. While incarcerated she completed additional courses on substance abuse, but received no treatment for her primary mental health diagnoses. She appeared to relapse again shortly before the attempted robbery charge in this case.

Sarmiento’s parole agent supervised her before her latest arrest, and was surprised that it occurred. She characterized Sarmiento as a “ ‘model parolee’ ” who followed the rules and maintained contact as required. She noted, however, that “drug use exacerbates [Sarmiento’s] mental health issues.”

My strong sense is that Ms. Sarimento -- who lives here in San Diego -- needs some help.

Here's how she came to the attention of the police:

"In this case, defendant Jeanette Sarmiento requested mental health diversion (Pen. Code, § 1001.361) after she was charged with attempted robbery arising from an incident in which she handed a liquor store clerk a note written in lipstick on a napkin saying, “Let me get the money.” The store employees did not give her any money. Instead, they called 911. According to one of the employees, “[I]t looked like she wanted us to call the police.” 

Seems fairly strongly to me like an appropriate case for pretrial mental health diversion.

The trial court -- Judge Moring -- didn't think so. The Court of Appeal reverses.

Hopefully Ms. Sarmiento can get her act together this time.

(Maybe also stay away from meth addicts in the meantime.)

Garner v. BNSF Railway Co. (Cal. Ct. App. - Jan. 4, 2024)

Back in the old days, when you saw a complaint against a railroad, it was for the typical stuff: a railway worker got injured, someone got hit by the train, a cow trespassed on the tracks, etc.

By contrast, nowadays, it's things like this one: a railway worker claiming that he got cancer from inhaling diesel exhaust, benzene, and the like.

The trial court bounced this one because it didn't think the experts satisfied Daubert, but the Court of Appeal reverses and remands for a trial.

It's never been easy running a railroad.

(Except, of course, in Monopoly.)

California Restaurant Ass'n v. City of Berkeley (Jan. 2, 2024)

Judge Friedland begins the new year with somewhat of a bang.

She generally doesn't like written dissents from the denial of rehearing en banc; e.g., "dissentals." For this reason, before today, she'd neither written nor joined one, thinking that they're somewhat unhelpful.

The operative words being "before today."

Today, she authors one, dissenting from the denial of rehearing en banc in a case holding that the City of Berkeley's attempt to ban natural gas hookups as a part of its building code was preempted by federal law.

Seven other Ninth Circuit judges join Judge Friedland's dissental. Since Judge Friedland has been on the Ninth Circuit for nearly a decade, and this is her first time writing or joining a dissent from the denial of rehearing en banc, it makes a fair amount of sense to have her author the thing. After all, it highlights the importance of the issue to have her author her first-even dissental.

Though having Judge Friedland write the thing (as opposed to any of the other judges who agree with her) does result in one slight complication. Judge Friedland drops a footnote at the outset of her opinion noting that she doesn't generally think that dissentals have a point, which is why she has never signed onto one previously. The seven other judges who join her agree with her on the merits, but not with respect to this footnote. So every other judge joins her opinion, but expressly notes that they don't agree with this particular footnote. (A complication that could have been avoided had someone else written the opinion and then had Judge Friedland join that opinion with the slight addition of her supplemental footnote.)

Still, a big day for Judge Friedland, and a way to rock in 2024.

P.S. - She almost made it a full decade. She joined the Ninth Circuit in April of 2014. If the case had taken just a few more months to resolve, Judge Friedland could have opened her opinion with "In over a decade on the bench . . ." rather than "In nearly a decade on the bench. . . ."

So close.