Pell v. Nunez (9th Cir. - April 30, 2024)

I readily concede that I know only a tiny bit about what it takes to become an attorney in California if you've graduated from an unaccredited law school. I know that you've got to pass the "baby bar" at some point after your first year -- and then, ultimately, the actual bar exam -- but that's about it.

Today, however, I learned that you apparently have to pass the baby bar within the first 18 months or so of completing your first year of law school. If you do, then you're good to go, and you get credit for all the classes you took in the interim before passing (e.g., your second and third year classes). But if you don't, you only get credit for your first year of classes.

I can somewhat see why that might be the rule. After all, if it took you twenty times to pass the baby bar, maybe we want you to take a few more classes before taking your shot at the actual bar exam.

That said, I'm not really sure that the underlying reasoning applies in situations like the one the Ninth Circuit addresses today.

Douglas Pell attends an unaccredited law school in California, and wants to be a lawyer. He takes the baby bar and passes on his first attempt -- great job. But he didn't take that exam until three years after his first year of law school. He says that his wife's liver transplant and other medical things got in the way.

Which is perhaps eminently plausible. Mr. Pell is 81 years old.

But the State Bar says, tough, you only get credit for your first year, so those 39 credits you earned after the first year don't count. Retake them.

Mr. Pell sues in federal court, loses, and the Ninth Circuit affirms. I've got no complaint with Judge Ikuta's opinion, which seems doctrinally correct. Technically, the State Bar doesn't admit -- or refuse to admit -- anyone to the Bar. Legally, it only makes "recommendations" to the California Supreme Court. Mr. Pell never filed a petition with the California Supreme Court seeking the relief he currently requests. That's fatal to his lawsuit.

Fair enough.

Though I still feel bad for Mr. Pell. He's in his 80s. It's not like he's got infinitely long to retake all those classes. Plus, he passed on his first attempt. No small feat. Seems like the guy's got it fairly together. Even though -- perhaps for understandable reasons -- he couldn't get it together to take his shot at the baby bar within the first 18 months.

Were he to file a petition with the California Supreme Court, and were I on it, I'd probably look fairly sympathetically the thing.

If an 81 year old can finish law school, pass the baby bar, and then pass the actual bar exam, I'm generally more than happy to have the guy as a lawyer. More power to ya.

Good luck, Mr. Pell.

People v. Fay (Cal. Ct. App. - April 29, 2024)

The California Supreme Court should grant review of this Court of Appeal opinion. Even if it's right. Whether you're convicted of murder, and thus spend most or all of the rest of your life in prison, should not depend on which particular appellate panel you happen to draw.

The question presented is the required mental state for a murder conviction when you commit an assault. Let's say, as here, you punch someone in the head in a regular old street fight, and they ultimately die as a result. The evidence suggests that you certainly didn't intend to kill them, but nonetheless that you wanted to punch them somewhere on their body where it would hurt a lot, and didn't particularly think (or care) about whether they might perhaps die as a result of your blows. They weren't blows that would normally cause death, but anything's possible, right?

Is that enough for a murder conviction?

The trial court below told the jury, consistent with what the prosecutor told them in their closing argument, that the standard is not that you didn't care whether the person was killed, but rather "the standard for this charge is[,] I don’t care if someone is hurt or killed, arguing that the defendant was guilty because he "didn't care that Anthony Davis [the victim] was hurt. He didn’t care.” That argument almost certainly made the difference in this case; the jury was repeatedly and completely deadlocked before that argument and instruction, and afterwards, it found the defendant guilty.

Is that an accurate statement of the law?

The trial court thought so, and there's a Court of Appeal opinion -- Olivas -- that said exactly that, albeit in dicta and in the context of an out-of-control driver whose conduct fairly clearly satisfied the typical "conscious disregard for human life" established by the California Supreme Court in Knoller. Moreover, the standard set forth in Olivas -- that the prosecution just has to prove that the defendant thought "I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed" -- has been applied by at least a half-dozen other Court of Appeal opinions, albeit again likely in dictum.

Whether that's an accurate statement of the law seems critical to decide uniformly and statewide. There are lots of people who would be guilty of murder if it's enough that they don't care that someone's "hurt" who definitely wouldn't be guilty of murder if the required showing is that they have to not care that someone may be killed by their actions sufficient to demonstrate a "conscious disregard for human life." And murder -- even second-degree murder -- is a sufficiently serious charge that we definitely want to get the standard right, and not convict someone of murder who wouldn't be guilty of that very serious offense in a different appellate division or in front of a different panel in the Court of Appeal.

So this is one of those cases where the California Supreme Court needs to take the case up and decide once and for all what the right rule should be. Because it's a serious charge with serious disagreement and serious consequences for everyone involved.

People v. Berlin (Cal. Ct. App. - April 26, 2024)

This seems like an easy decision with which to comply -- as long as you're aware of it beforehand.

Can a judge order someone to pretrial mental health diversion? Yes. Of course. Can a judge order restitution? Same answer: Yes. Clearly.

But if you want to order restitution, you've got to do so before the two-year (or whatever) mental health diversion is over and you're about to dismiss the charges.

Not after.

So holds the Court of Appeal, reversing the trial court.

Again: An easy decision to follow, as long as you know of it.

Which now everyone (hopefully) does.

Fejes v. FAA (9th Cir. - April 23, 2024)

Given that marijuana is legal in Alaska and that the feds generally don't prosecute the stuff, it seems incredibly harsh to entirely deprive someone of his livelihood -- here, taking away James Feje's private pilot license (he's a bush pilot in Alaska) -- just because he transport weed to rural Alaskan communities that have no roads and no other way to get the stuff.

That said, yeah, the statute does seem to say that your pilot's license can indeed be revoked for flying weed, so if the federal government elects -- in its sage (?) discretion -- to pull your license, there's really nothing the Ninth Circuit can do about it.

Given the underlying statutory predicate, as a lawyer, I might have suggested to Mr. Fejes that he be a little more low-key about his business. At a minimum, maybe expressly calling his company "Flying High Investments" was a mistake.

Ruelas v. County of Alameda (Cal. Supreme Ct. - April 22, 2024)

This opinion of the California Supreme Court -- in response to the Ninth Circuit's certified question -- is unanimous, and reading Justice Evans' opinion, you can potentially see why. She does a very good job of exploring the interplay between the various statutory provisions here, some of which were added by the Legislature and others of which were added by the electorate Proposition 139. Forthrightly, I'm not certain at all that the voters were, in fact, fully "aware" of the way the California treated various prisoners when it passed the underlying initiative (in fact, I'm extremely confident that they weren't), but I understand and appreciate that we pretend that they were when we seek to harmonize various statutory provisions.

I just have one question.

Imagine that you're a lawyer -- as, indeed, most of you are. You, presumably, care a fair piece about justice, in every sense of that word, right?

On your deathbed, are you really excited that your principal contribution to California jurisprudence is making sure that jail inmates who are not convicted of any offense -- e.g., pretrial detainees -- are paid absolutely nothing for the eight hours of work they do every day in the kitchen for a private employer (thereby, coincidentally, taking that job away from someone else) whereas inmates who have been found guilty of a crime are entitled to receive pay equal to that paid to the company's private employees?

That's just, honestly, not something that I think is just, or -- at a minimum -- something that I really want to devote the (increasingly) limited hours of my remaining lifetime to accomplishing.

I say that not to pick on -- at all -- the (winning) counsel for appellants here. The first representative matter he lists on his firm's web site, for example, is a pro bono case that he and others at the firm litigated to "successfully secur[e] compassionate release for a D.C. inmate and military veteran, reuniting him with his family." Well done. I can see why that's something that, on one's deathbed or otherwise, one might be legitimately proud of accomplishing. (I get it if others might disagree, on the theory that the inmate had presumably been convicted of a crime and released before he served his full sentence, but the point is that the end result is consistent with one's own personal values.)

But helping to make sure that innocent inmates (i.e., the presumptively "not guilty") get paid absolutely nothing for their work, whereas guilty inmates get paid? Nah. Everyone, of course, deserves to have an attorney to help them argue their position in court, especially if they happen to be right on the law. 

I'll just let someone else brief and argue that one, thanks.

Maybe there's someone in the world who would defend the proposition that guilty people should get paid for their work in prison but that innocent people shouldn't. Personally, though, I just don't see it.

Regardless, at least until (and if) the law gets changed, that's currently the rule in California.

U.S. v. Ramirez (9th Cir. - April 18, 2024)

I'm fairly confident that this is all about pretext. But given that the Supreme Court is fine with allowing pretextual traffic stops, my sense is that the police officers here did an admirable job of keeping things calm and respectful. As, I might add, did the defendant.

Here's how the traffic stop went down:

"In July 2020, Officers Dorin Buchanan and Patrick Marshal pulled over Victor Ramirez after witnessing him speed in a residential neighborhood, fail to stop at a stop sign, and not use a turn signal. Before pulling Ramirez over, one of the officers recognized him as a gang member based on an earlier encounter.

After Ramirez stopped his car, Officer Buchanan approached and immediately asked: “What’s up my man? You on probation or parole?” Ramirez answered, “Parole.” Officer Buchanan then asked, “For what?” and Ramirez responded, “For a firearm.”

Officer Buchanan followed up with a few more questions, including when he last checked in with his parole officer, where he lived, whose car he was driving, and what he was doing in the area. During this exchange, Officer Buchanan could see that Ramirez had several gang-related tattoos. And based on those tattoos, Officer Buchanan claimed to know that Ramirez was in an area populated by rival gang members. Officer Buchanan testified that it would be “uncommon” for a rival gang member to be in the area “without a firearm.”

Officer Buchanan instructed Ramirez to turn off the car. He then asked, “You don’t got to reach for it, but do you have a driver’s license?” Ramirez stated he did but that it was not with him. Next, Officer Buchanan asked Ramirez to put his right hand on the back of his head and unbuckle his safety belt with his left hand.

While Ramirez’s right hand was on his head and his left hand was hanging out the car window, Officer Buchanan asked Ramirez if he had a “strap” on him. Ramirez answered, “To be honest with you, I do.” Officer Buchanan responded, “It is, what it is. A man like you is not going to drive through that neighborhood without a strap, you feel me?” Ramirez then informed Officer Buchanan that the gun was in the glove compartment of the car.

Once Ramirez was out of the car, the officers retrieved a loaded 9mm semiautomatic pistol from the glove compartment. Officers also checked the computer system in their patrol car and confirmed that Ramirez was on parole. A federal grand jury indicted Ramirez for possessing a firearm and ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1)."

I might add that, in reading the briefs, there were additional details of their interactions that were fully consistent with the underlying conversational tone; e.g., the officer saying "Do me a favor bro, put your right hand on the back of your head for me dude, [and] with your left hand, reach across and take off your seatbelt okay? Thank you, bro. Keep that right hand on the back of your head.”

Bro code, apparently. But well played.

Kuigoua v. Dept. of Veterans Affairs (Cal. Ct. App. - April 17, 2024)

I'm not exactly sure why Justice Wiley decided to publish this opinion, since it seems fairly clearly to make no new law and merely holds -- consistent with legions of precedent -- that in employment cases, in which you have to exhaust your administrative remedies first before you can sue, it's not okay to list one set of facts in your administrative petition and an entirely different set of facts in your subsequent lawsuit (e.g., claims for sex discrimination at one location in the administrative petition but claims of sexual harassment at a different location in the lawsuit). Can't do that. Summary judgment.

Granted, there are some new fancy words in the opinion that aren't usually used in your run-of-the-mill employment opinions (e.g., "oppression," "scotched," "conciliate" and the like), plus a new analogy that might perhaps help explain things to some people ("Kuigoua loses this appeal because he changed horses in the middle of the stream. His agency complaint was one animal. On the far bank, however, his lawsuit emerged from the stream a different creature.). But otherwise, it's just a typical application of a set group of established legal principles to the particular facts at issue here.

Not that I particularly care if an author decides to publish an opinion that seems fairly clearly to meet none of the nine alternative standards for publication set forth in Rule 8.1105(c). Maybe a couple of trees take a hit, but otherwise, no real harm done.

Just somewhat unusual.

City of Santa Cruz v. Superior Court (Cal. Ct. App. - April 16, 2024)

Two thoughts sprung to my mind when I read this opinion:

(1) What an incredible waste of taxpayer money when a county (here, Santa Cruz County) sues a city (here, the City of Santa Cruz) over whether the city or county is responsible for a public road (here, Capitola Road) that allegedly got undermined by drainage pipes and needed to be repaired. It's a nine-count complaint (!) for $1.2 million in which the County is suing the City for (1) dangerous condition of public property, (2) trespass, (3) nuisance, (4) waste, (5) indemnity and contribution, (6) removal of lateral and “subadjacent” (sic) support, (7) declaratory relief, (8) account stated, and (9) goods and services rendered."

Taxpayers funding lawyers on one side and taxpayers funding on the other side, to be decided by courts funded by taxpayers, including but not limited to the present appeal. The parties can't work this thing out cooperatively? Seriously? Particularly in a lawsuit over a $1.2 million, which is an incredibly small figure in the governmental scheme of things?

(2) What a stupid rule that when a county sues a city, the city's allowed to create its own rule that requires a claim to be initially presented by the country to the city before a lawsuit is filed. Municipal claims rules are likely stupid in their own right -- the claims pretty much always get denied, and it's just another way to make lawsuits against a municipality more difficult and potentially enable a jurisdictional defense even if there's actual liability -- but those rules are especially silly when they apply to claims made by another governmental entity. Who cares if the county just files in court first? It's not like there's a serious concern that there will be too many frivolous intergovernmental lawsuits. Counties should just be able to sue cities if they want. (But should think seriously before doing so -- see Point No. 1.)

Regardless, that's the law.

Perez v. City of Fresno (9th Cir. - April 15, 2024)

Judges Forrest and Thomas disagree on whether the law is "clearly established" that it's not okay for police officers to use continuous force (e.g., by kneeling on someone's back) to someone who's on the ground and handcuffed, particularly when (as here) he is telling the officer that he's unable to breathe.

But can we all at least agree that there are a disturbing number of cases, both in the Ninth Circuit and elsewhere, involving that pretty much identical fact pattern? (FWIW, Judge Thomas' dissent quotes a prior Ninth Circuit opinion that says "The officers—indeed, any reasonable person—should have known that squeezing the breath from a compliant, prone, and handcuffed individual despite his pleas for air involves a degree of force that is greater than reasonable," and says "Between 2003 and 2017, six of our sister circuits reached a similar conclusion concerning use of prone compression on a subject who has been restrained." We all could likely add additional cases that didn't result in opinions in the Court of Appeals.)

At a minimum, we can all at least hope that the number of these cases diminishes in the future, right?

Surely there's got to be at least some common ground.

P.S. - Hat tip to 11-year old Carli, who left us this morning for Dog Heaven. Godspeed.

U.S. v. Medina-Lopez (9th Cir. - April 12, 2023)

That darn Westlaw. Always messing up circuit precedent by placing an unjustified red flag on cases that were not, in fact, overruled.

So sayeth Judge Graber. (Fixing the problem here.)

People v. Lewis (Cal. Ct. App. - April 10, 2024)

Michael Lewis, age 37, has a lengthy rap sheet, and his latest offense was a first-degree murder conviction (he shot the victim half a dozen times at close range) in August 2022 for which he received a sentence of 75 years to life. During previous periods of incarceration, "Lewis had numerous rules violations, including for fighting, participating in a riot, failing to respond to notices, delaying a peace officer, disobeying orders, battery on a peace officer, and battery with a deadly weapon."

Not someone you'd facially be likely to let out of prison anytime soon, right?

But Mr. Lewis was also recently diagnosed with ALS, and according to the doctors, his particular case is "pretty rapidly progressive.” At the time of his compassionate release hearing in August 2023, the doctor testified that "Lewis is dependent on medical staff to 'do everything for him.' Lewis requires assistance in eating, showering, and using the bathroom. He is able to walk short distances but experiences some weakness in his legs. Because of the lost functionality of his arms, Lewis is 'very unsteady' walking, so he occasionally falls. He fell the week before the hearing. Staff transport Lewis to appointments by wheelchair. Given the rapid progressivity of the disease and Lewis’s weakness, Dr. DiTomas opined: '[T]here’s just no way [Lewis] could cause harm to somebody. You just have to push him a little bit, and he’s going to fall over. There’s no way for him to protect himself.'” The doctor also testified that Mr. Lewis was about to fully lose his ability to speak in about a month, and “would not be surprised if he died in the next six months. And [she] would be surprised if he lived a year." Finally, "Dr. DiTomas observed that during the couple of months that Lewis had been in her unit he had 'been incredibly respectful, appreciative of care,' and the staff supported him."

The trial court denied compassionate release on the grounds that Mr. Lewis was still a serious danger to the community. The Court of Appeal reverses and orders him immediately released.

The original opinion was unpublished, and rendered on January 3, 2024. It was published today. It'd be interesting to find out what Mr. Lewis' condition is today -- I tried a little to find out, but couldn't discover anything online. Sixth months after his hearing in August 2023 was close to the same time the opinion was issued, so I suspect that he lived at least that long. It's now been almost eight months since the hearing, and the doctor said she'd be "surprised" if he lived a year. Presumably he's still alive, and since I can't find any reports of any crimes he's committed, I presume the Court of Appeal is right -- thus far, anyway -- that he's at least not an obvious recidivist at this point.

Lots of people, I suspect, would think that spending only a year in prison for first-degree murder was way less than necessary. Others, I believe, would understand and agree with letting this particular person out to die on his own.

Your call?

Casola v. Dexcom (9th Cir. - April 10, 2024)

Everything that Judge Callahan says and does here is exactly right. And -- full disclosure -- I say that even though I have a good friend who is the COO of the losing party.

It's an appeal that's necessitated by a messed-up contemporary filing system in state court -- one that wasn't anticipated by the people who crafted the old-school removal rules during the pre-electronic filing era -- as applied to a common trick that sophisticated parties routinely employ to game the system in a way that Congress didn't anticipate when it, too, crafted the removal rules in a pre-electronic era. So it's basically one set of antiquated rules as applied to another set of antiquated rules; rules that both made sense in the old days, but that lead to abuse nowadays.

Here are the basic underlying rules:

(1) In the old days, you "filed" a lawsuit when you physically handed it to the Clerk. But now, most cases are (and must be) e-filed, typically using service providers, and the case isn't technically "filed" until after the Clerk "processes" the complaint and officially "files" it, which may be several days (or even a week) later.

(2) Both now and in the old days, you've got 30 days to remove a lawsuit from state court to federal court. In the old days, we'd know full well when those 30 days started running: from the filing date (i.e., delivery to the Clerk). But what about in the new days? Does it start ticking upon the e-filing date, or only once the complaint is "accepted" by the Clerk and officially "filed"?

(3) In the old days, you pretty much found out about a lawsuit once you got served with it. But in the new days, most sophisticated corporate parties have services that tell them immediately once a lawsuit has been filed against them, even before service, and -- nowadays -- even in advance of the complaint actually being "accepted and filed" by the Clerk (because they have access to the e-filing records). A party can't remove a lawsuit from its home state in a diversity suit, but there's an exception for parties that are not yet served (because we don't want sham unserved parties to prevent removal). In the new days, can you "snap-remove" a lawsuit -- even from your home state, and even when you're the sole defendant -- as long as you find out about the lawsuit quickly and remove it before the plaintiff has had a chance to serve you yet? Moreover, in the very-new days, can you "super-snap-remove" a lawsuit even before it's been "officially filed" by the Clerk?

There are some other additional complexities addressed in Judge Callahan's opinion; e.g., appellate jurisdiction (or lack thereof) over remand orders, as well as timeliness issues. Regardless, in my view, she answers all of them correctly. Or at least all of them that she needs to.

The Ninth Circuit holds that "super-snap" removals aren't proper. You can't remove a lawsuit from state court before it's "officially" filed; i.e., in the period after it's submitted for e-filing but before it's been "accepted" by the Clerk. Such removals aren't effective; they're void. So back to state court you go.

That all seems right to me, for the exact reasons Judge Callahan articulates. She does a great job both discussing the textual provisions here as well as the equities.

Expressly left unresolved, however, is whether "regular" snap-removal is permissible; i.e., removal after the lawsuit is "accepted" (e.g., one minute after the Clerk electronically issues the summons) but before the lawsuit is officially served.

This, in my view, is where textualism fails. Yes, the statute says that you can remove, even from your home state in a diversity case, if the defendant who resides in that state is not yet served. But that leads to abuse, and conflicts with the core purpose of the statute, which was to stop removal in diversity cases when it wasn't needed because the defendant resides there anyway. So, for someone like me, the proper way to resolve cases like that are to interpret the statute consistent with its clear purpose, and to say that you're only an "unserved" party for purpose of that provision if you're unserved because you're basically a sham party added to prevent removal. Which categorically wouldn't be the case where, as here, you're the ONLY defendant, and the only reason you're not yet served is because you removed the case before the plaintiff even had a practical chance to serve you. Problem solved, IMHO, and justice advanced.

But that's not what textualists -- or other circuits -- have done. To society's detriment, I believe.

But that's an issue for another day. For now, at least, "super" snap removal isn't permitted. And, maybe, one of these days we'll stop "regular" snap removal as well.

Or maybe not.

Regardless, in the meantime, take advantage of the rules, and pay attention to what lawsuits (if any) are filed against you. And promptly remove them before you're served.

Just wait until the thing is actually officially "accepted".

P.S. - I also agreed with Judge Callahan's concluding decision to have both sides bear their own costs. That's entirely equitable as well, I think, given the complexity of the underlying issues. Well done.

Weber v. Superior Court (Cal. Ct. App. - April 9, 2024)

Pretty much everyone -- including but not limited to Earl Warren to Stanley Mosk -- thought that California didn't allow one person to run for two different offices at the same election.

But the Court of Appeal decides today that that's wrong; that one person can, indeed, run for multiple offices if s/he so decides. Potentially -- as perhaps likely here -- winning all of them.

Justice Earl admits that this view of the statute might lead to absurd result, including but not limited to the following hypotheticals: "For example, a party candidate could run for every California congressional seat at the same time. Or one very popular candidate could conceivably run for Governor, Lieutenant Governor, Secretary of State, Attorney General, Controller, and Treasurer at the same election, win them all, and then resign from all but the Governor’s office and appoint their friends to other statewide offices.”

But Justice Earl holds that that's an issue for the Legislature, not the courts. The Court of Appeal holds that the existing statute -- Section 8003 -- only bars candidates from running for multiple offices in the same election if they're running as independents, not if they're running (as here) in a primary election. (As for "why the Legislature would have adopted a prohibition on dual candidacy but applied it only to independent candidates,” the Court of Appeal simply responds: "Perhaps it was an oversight, or perhaps the Legislature was simply focused on limitations on the independent nomination process when it enacted section 8003. But if it was an oversight, it is the Legislature’s job to correct it, not ours.")

I seriously hope that someone famous takes up the hypothetical and runs for every single office in California in the next general election: every congressional seat, Governor, every statewide office, etc. And wins.

It'd be a hoot.

The Rock, maybe?

Dilbert v. Newsom (Cal. Ct. App. - April 8, 2024)

Since nothing in the federal or state constitutions expressly requires the governor of California to act on commutation petitions within a set timeframe, it's fairly clear that the governor can take as long as s/he wants on these petitions -- including, essentially, forever.

But to the degree it was unclear before, today's Court of Appeal opinion expressly so holds.

I did learn one thing today, however, that I didn't know previously. Apparently, the California Constitution says that the governor can only grant a pardon or commutation to someone "twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring." (Article V, Section 8).

I'm quite confident that others knew about this quirk in the California pardon scheme, but I didn't. I was more familiar with the federal system, where the president can do whatever s/he wants.

Interesting wrinkle.

People v. Uriostegui (Cal. Ct. App. - April 5, 2024)

I get what Justice Gilbert is saying in his dissent here. I really do. And it's true that the defendant here appears to have been caught on a home video camera entering the home; that he was apprehended by the police near the residence a short time later; and that he matched the description of the person on the video and was caught holding a knife stored in the garage.

So I have no real dispute with the part of Justice Gilbert's concluding paragraph that these facts "show overwhelming evidence of guilt."

But I'm not sure that the next three sentences of his conclusion follow from that premise; e.g., that "All parties in litigation are entitled to a fair trial. This includes the prosecution. The majority’s rote application of section 231.7 defeats this goal."

It's not like the majority's opinion here lets the accused go free. All it does is to entitle the defendant to a new trial in which the prosecution doesn't illegally dismiss a minority juror. If the evidence is indeed so overwhelming, it's extraordinarily likely that he'll again be found guilty and held responsible for what he's done.

This time, from a jury of his peers.

I don't particularly see what's so devastating about that. Does it take a little more effort? Sure.

But it seems worth it for the overall result.

Moreover, maybe the way to stop the duplication of effort would be to not impermissibly strike the minority juror in the first place. Particularly when -- as apparently here -- the evidence against the defendant is indeed so overwhelming.

U.S. v. Hansen (9th Cir. - April 3, 2024)

One of the slightly bad things about having old(er) people around is that they might be stuck in the traditional way of doing things and unjustly resistant to new ideas.

But one of the relatively good things about having old(er) people around is that they might recall things from the past that might potentially be relevant to a current issue.

I say this as someone who's in his late 50's and considers himself somewhat old(er), and although I hope and attempt to avoid the downsides of the first observation, I simultaneously hope and attempt to add value on occasion through the second.

Those were the thoughts that I had on reading this opinion by Judge Gould.

I can't disagree with virtually anything of substance that Judge Gould says. The procedural history of the case is somewhat detailed, but nonetheless relatively straightforward. Back in 2017, Helaman Hansen gets convicted of aiding and abetting unlawful immigration. In 2022, the Ninth Circuit reversed his conviction on these counts because it found the statute unconstitutionally overbroad because it didn't have a specific mens rea requirement. The Ninth Circuit refused to take the case en banc (over some dissent), but last year, the Supreme Court granted certiorari and (over some dissent) narrowed the statute to require a specific mens rea requirement and thus remanded the case back to the Ninth Circuit. 

Now, in 2024, the Ninth Circuit reverses the convictions because the jury instructions in the 2017 trial were inaccurate, since they didn't anticipate -- or accurately reflect -- the Supreme Court's subsequent narrowing of the statute in 2023. So we need a retrial with accurate instructions.

Seems right to me.

With one caveat. (This being the point about the value of "old(er)" people above.)

In footnote 2, Judge Gould says: "Hansen also argues that, in light of the Supreme Court opinion, the evidence was insufficient to support these two convictions, and that this subsection of the statute is void for vagueness or otherwise unconstitutional as applied to him. We do not reach these issues and express no opinion on them."

Which, ordinarily, I'd understand. The Ninth Circuit is reversing Mr. Hansen's convictions on these counts anyway, so why bother deciding the (unnecessary) issue of whether these convictions should also be reversed because the evidence was insufficient. No point, right?

But when I read that footnote, I distinctly recalled writing something back when I was a law clerk some 33 years ago. (My goodness; it's been a third of a century. Maybe I should just say "old" at this point.) A little follow-up research revealed the following quote, which (to be clear) is most definitely not from an opinion on which I worked but which nonetheless accurately states the law as I believed it to be not only at the time, but also now:

"Even though we reverse for error in the Jewell instruction, double jeopardy concerns require us to reach Sanchez-Robles's contention of insufficient evidence. See United States v. McKoy, 771 F.2d 1027, 1215 (9th Cir. 1985). 'Because an appellate reversal of a conviction on the basis of insufficiency has the same effect as a judgment of acquittal, the Double Jeopardy Clause would preclude retrial. Therefore, 'the existence of other grounds for reversal does not avoid the necessity of reviewing the sufficiency of the evidence.' Id. (quoting United States v. Bibbero, 749 F.2d. 581, 586 (9th Cir. 1984)."

United States v. Sanchez-Robles, 927 F.2d 1070, 1076 (9th Cir. 1991).

If the law in the Ninth Circuit now is the same as it was back then -- which it seems like it should be -- doesn't this mean that the panel must, in fact, resolve the insufficiency claim, and thus replace footnote two with a resolution of the merits?

Vasquez v. SaniSure Corp. (Cal. Ct. App. - April 3, 2024)

I'm confident that Justice Baltodano is right here, and it points out an interesting way to avoid arbitration that I hadn't considered before. Yes, when Jazmin Vazquez first started working at SaniSure in July 2019, she signed a ton of papers on that first day -- something with which we're all familiar -- including a broad arbitration agreement that required between her and her employer be submitted to arbitration. Generally, that's binding.

But she left the company in May of 2021. Four months later, though, she decided to come back. At that point, the company didn't need her to sign a whole new set of onboarding documents -- they already had her W-4, her date of birth, etc. The company just stuck with the old ones, which already had the relevant information.

But when Ms. Vazquez later sues for alleged payroll violations during her second stint at the company, she successfully avoids arbitration. Both below and in the Court of Appeal, and rightly so. As the Court of Appeal explained:

"SaniSure failed to show that Vazquez agreed to arbitrate claims arising from that stint of employment. Nor did the company show the existence of an implied agreement to submit claims arising from that second stint to arbitration; the agreement covering Vazquez’s first stint of employment terminated in May 2021, and there was no evidence that the parties intended it to apply thereafter."

True and certain it is. Affirmed.

I nonetheless had an internal reaction to the last clause of that passage: that "there was no evidence that the parties intended [the arbitration agreement] to apply [after her first stint of employment ended]."

That's doctrinally accurate, and correctly resolves the appeal. But I actually think that underlying all this is sometime profoundly artificial -- a slightly fancy word for "fake".

There's no doubt in my mind whatsoever -- zero -- that SaniSure "intended" to make Ms. Vazquez arbitrate all her claims against the company. I'm sure they had every single employee sign arbitration agreements when they first joined, and with Ms. Vazquez, they simply forgot (or weren't told by their attorneys or people in HR) that she technically had to re-sign this agreement for it to be effective. It was actually a unilateral mistake, not the absence of any "evidence" that the company "intended" that Ms. Vazquez be precluded from suing them in court. Of course that's what they wanted and intended.

Somewhat similarly, Ms. Vazquez, in truth, never actually "intended" anything. There were a bunch of papers she had to sign when she started working if she wanted to work there, and she signed them. She probably didn't read them, and even if she did, she wanted the job, so she'd have signed pretty much anything they put in front of her -- at least if it wasn't about giving up her kidneys or something like that. She didn't "intend" anything either; she just wanted a job. She certainly didn't "intend" to require arbitration, even the first time. She just passively agreed to whatever the company required.

It's surely doctrinally accurate to call arbitration agreements "agreements" since both parties signed the underlying documents and we enforce them. But, in truth, importing underlying concepts like "intent" to these things doesn't really reflect reality.

Ms. Vazquez wanted a job, SaniSure wanted to make sure she couldn't sue them in court, and Ms. Vazquez was undeniably willing to strike that deal. Here, due to an internal mistake, SaniSure didn't realize it had to slide another piece of paper in front of Ms. Vazquez -- one that she would surely have signed -- in order to make that happen under our (fake) doctrinal construct that only when that piece of paper is signed can we really know the terms to which the parties intended to agree.

I know here what both sides wanted. We all do. What they "intended" really doesn't matter. What the law requires -- for better or worse -- really isn't about that at all, regardless of how much we pretend.

U.S. v. Sapalasan (9th Cir. - April 1, 2024)

There's no reason why the police have to search your backpack (without a warrant) after they've already released you from the police station. None. Zero.

The Supreme Court has said it's fine for the police to search your backpack after you're arrested as part of an "inventory search" -- that way, they'll know what's in the thing (e.g., nothing dangerous) and you can't say that the police stole your stuff. That's fine. They can't give the thing back to you (since you're in jail) sight unseen, so an inventory search is perhaps justified.

But if they've arrested you and already released you, they can just give the thing back to you. There's zero need to search it -- much less any need to do so without probable cause and without a warrant.

But the Ninth Circuit says it's just fine to search the thing anyway.

I'd have joined Judge Hawkins' dissent.

Medallion Film LLC v. Loeb & Loeb LLP (Cal. Ct. App. - March 28, 2024)

Justice Stratton doesn't exactly pay lavish compliments to Loeb & Loeb -- or its attorneys -- in this opinion.

A guy (Sadlier) enters into an agreement with a company (Medallion Film) to help the company try to get some funding. The guy promises not to use any of the contacts the company gives him, but the company subsequently learns that the guy (allegedly) got some money for someone else from one of the contacts (BlackRock) the company provided. So the company sends an email to the contact (BlackRock) that says:

"Randy hope all is well. We have a fee agreement with Bill Sadle[i]r based upon monies raised from Blackrock thru my introduction to you. What can you do to assist us here in collecting what is due to us. Jesse [Kennedy, of Medallion] will provide a reconciliation. As you know our financial models were provided to you and Blackrock on the P&A. Let us know so we dont have to litigate and can resolve the matter in an amicable fashion. Thx.”

The guy subsequently gets wind of this email, and has his lawyers at Loeb & Loeb write a nastygram back that says: "Aviron has no legal connection to Clarius Capital Group, LLC whatsoever. It is not a successor in interest and there is no common ownership between the two companies. Mr. Sadleir, who signed the referenced agreement on behalf of Clarius Capital Group, is an Aviron employee with no ownership interest in Aviron. Had Mr. Sadleir left Clarius to work at Sony Pictures Entertainment, for example, your claim for payment to you by Sony, had it received funding from BlackRock, would be equally without merit. Any further communication by you to Randy Robertson or anyone else at BlackRock regarding this matter will be considered by Aviron to constitute tortious interference.”

But what the Loeb & Loeb partner said was (allegedly) totally untrue, and Loeb & Loeb (allegedly) knew it because they actually helped Sadleir create the successor company, and also represented that company when it got the cash from BlackRock. Thereafter, once the company discovered the truth behind these (alleged) lies, they sue Loeb & Loeb. Which responds with an anti-SLAPP motion that says that the lawsuit arose out of a protected pre-litigation communication and is absolutely privileged. The trial court agrees and dismisses the lawsuit.

The Court of Appeal reverses. Justice Stratton says that Loeb & Loeb's response was not, in fact, a communication in anticipation of litigation because the plaintiff's email was the opposite of a litigation threat; they were trying to get their piece of the pie cooperatively from a third party, without filing any lawsuit. So the lawsuit doesn't arise out of protected activity, and the anti-SLAPP statute doesn't apply. In the (quite direct) words of Justice Stratton:

"From the first sentence of its appellate brief, Loeb & Loeb repeatedly and hyperbolically describes the email to which Given responded as an explicit threat of litigation conclusively establishing Given’s letter as anticipating litigation. But the actual message to which Given was responding was nothing of the sort. This was not a demand letter or litigation threat, and it was not even directed to Aviron. Rather, plaintiffs reached out to their contact at BlackRock—the person to whom they had introduced Sadleir pursuant to the consulting agreement—and asked for BlackRock’s help in securing the payment to which they thought they were entitled: “What can you do to assist us here in collecting what is due to us[?]” They sought BlackRock’s help so the question of payment could be addressed informally, “so we don[’]t have to litigate and can resolve the matter in an amicable fashion.” The email demonstrates the plaintiffs just wanted to be paid, and they were appealing to whomever they thought would be influential in persuading Sadleir to pay them without having to resort to litigation. This is the exact opposite of a threat of litigation." (emphasis in original).

Since the anti-SLAPP statute doesn't apply, reversal of the dismissal is required.

And then the opinion then goes on to make it even worse for Loeb & Loeb.

Even though the Court of Appeal has already held in Part I that the anti-SLAPP statute doesn't apply, Justice Stratton then goes on in Part II to unnecessarily -- but dispositively -- reject every single one of Loeb & Loeb's defenses on the merits. ("While our conclusion that the causes of action asserted in the amended complaint arise from conduct that is not protected is determinative of this appeal, we discuss the second prong because even if Loeb & Loeb did carry its burden to make a prima facie showing that the claims alleged in the amended complaint arose from protected activity, the plaintiffs made the requisite showing of merit required by the statute to survive the special motion to strike. This is equally and independently sufficient to demonstrate the anti-SLAPP motion should have been denied.")

In the next pages, the Court of Appeal rejects their litigation privilege defense, their statute of limitations defense, and their reliance defense -- basically, every single defense they have to the entire lawsuit. Moreover, in doing so, Justice Stratton is occasionally less than exceptionally kind. (To take but one example, the Court of Appeal's rejection of the reliance defense begins by saying "In a rather bleak argument, Loeb & Loeb argues plaintiffs cannot prove they justifiably relied on Given’s representations because as a matter of law it was not justifiable to rely on the representations he made as counsel for Aviron.")

The net result of which is that Loeb & Loeb goes from winning the lawsuit below -- and getting their fees paid -- to not only having the dismissal (and fee award) reversed, but also to basically no longer having any chance of getting out of the lawsuit on summary judgment -- and perhaps not even at trial -- either.

That hurts.

My strong sense is that the Court of Appeal didn't like (at all) the way Loeb & Loeb handled this thing, either in the underlying dispute or on appeal. It's not surprising that the justices would not like a lawyer who (allegedly) deliberately lied in an email. But I also suspect they didn't particularly appreciate the one of Loeb & Loeb's response to the plaintiff's email to BlackRock either. (Here's how Justice Stratton characterizes that response: "Givens' bombastic and disproportionate response to an email not even directed to his client is not a communication made in good faith and serious contemplation of litigation but an attempt to dissuade the plaintiffs from making any further inquiries.")

Sometimes, atmospherics matter.