Election Integrity Project v. Lunn (Cal. Ct. App. - Jan. 30, 2025)

It may well be that the Court of Appeal got this one right. But if I were the appellant, even wholly beyond losing on the merits, I would be bummed at the somewhat cursory way the opinion is written.

It's a real appeal, with real arguments. The Elections Code says that interested parties can have observers when elections officials count mail-in ballots. For good reason. We're a democracy. We like openness. We want to dispel any potential impression that there's hanky-panky going to when ballots are counted. It's not like irregularities in counting ballots are absurdly inconceivable, after all. Granted, the United States is not Venezuela. But perception, as well as reality, is important.

Appellant here, EIPC, observed the ballot counting in Ventura in the 2020 and 2021 elections. Which they were entitled to do under the Elections Code. The appeal is essentially about how close the observers were entitled to be to the actual counting. Elections officials put them in a particular spot, and they had to stay there. From that spot, the observers could see that the elections folks were, in fact, comparing signatures on the ballots to the recorded signatures of those people. But they couldn't see the actual signatures; they were too far away. So while the observers could see the overall "procedure" the elections officials were using -- i.e., that, yes, they were comparing signatures -- the observers couldn't see if those officials were actually doing their job correctly, or how exactly "close" the signatures had to be before they were verified (or, conversely, before they were bounced as not matching each other).

The statute itself doesn't directly answer this question. It says that "vote by mail voter observers shall be allowed sufficiently close access to enable them to observe the vote by mail ballot return envelopes and the signatures thereon and challenge whether those individuals handling vote by mail ballots are following established procedures, including all of the following: [¶] (1) Verifying signatures on the vote by mail ballot return envelopes by comparing them to voter registration information." You could interpret that in one of two ways. You could perhaps say, like the trial court, that this just means that the observers need to be close enough to make sure that some comparison is taking place. Or you could perhaps say, like EIPC says, that to be able to effectively "challenge" that process, you've got to be able to at least see the two signatures -- and can't tell if the "procedure" used by the elections staff is valid or not if you can't see what's being compared.

There are decent arguments on both sides. Rational people could likely come to differing conclusions on that point. The answer is not obvious, at least to me.

But Justice Gilbert seems to think otherwise -- or at least that's the keen impression one receives from reading his seven-page opinion here. I know it's Justice Gilbert, so of course, one is not surprised that it's a concise and somewhat breezy disposition. (Especially when, as here, the opinion is initially unpublished.)

Still. It's an important issue. A serious dispute, in my view. One might have wanted to address the issues in a bit more exhaustive detail. If only because (1) election integrity is a fairly fundamental component of a democracy, and (2) there are, in fact, real reasons why one might want to enable observers to actually be able to do their jobs rather than just participate in a superficial overview of the process.

I'm not necessarily saying that Section 15104 of the Elections Code allows observers to get in close and actually see the signatures. Maybe it does, maybe it doesn't. Reasonable minds may differ on this one.

But it's a real issue. So even as an outside observer interested in the process, there might have been at least a little more that the Court of Appeal could have done here.

IMHO.

Bakos v. Roach (Cal. Ct. App. - Jan. 29, 2025)

The statute -- Section 597.1 of the Penal Code -- does indeed seem to expressly grant someone who has their (allegedly neglected) animals seized the right to a prompt post-seizure hearing to contest the seizure. So when plaintiff was deprived of that right, he's got a cognizable claim. So holds the Court of Appeal.

I like post-seizure hearings; they're an essential element of due process, particularly when required by a statute. So I appreciate the Court of Appeal's reversal of the judgment below.

Nonetheless, the seizure of the allegedly neglected animals here was done by the Humane Society, and I expect (though don't know for sure) that they had a darn good reason to seize the animals that they did. I would not at all be surprised to learn that they were, in fact, neglected.

So I'm not sure that the plaintiff will recover meaningful damages (if any) at the end of the day. And if the animals were indeed neglected, I'm not confident that he should -- or that, even if he recovered them, that he should be allowed to keep them, as opposed to, say, transferring them to the animals who were abused (by, for example, giving those damages back to the Humane Society to reimburse it for the costs that they incurred in treating the injured animals).

All that will be ascertained in due course. For now, there's still a lawsuit. Albeit one that I would strongly hope would be resolved without the need for substantial additional litigation.

One can always hope.

Johnson v. High Desert State Prison (9th Cir. - Jan. 27, 2025)

I felt whipsawed on this one.

I noticed at the outset that (1) it was an opinion from Judge Callahan, (2) joined by Judge VanDyke, (3) involving the rights of prisoners. So I felt fairly confident at the get go, even without more, about how the opinion would come out.

Then I read the first paragraph of the opinion, which was all about the Prison Litigation Reform Act of 1995 and its desire to curtail lawsuits filed by prisoners. That reaffirmed my keen sense of how this one would end up. One usually doesn't begin an opinion with glowing words for the PLRA if you're going to find in favor of the prisoner(s).

But then I get to the second and third paragraphs, which describe the facts. Three prisoners had filed a civil lawsuit together, but the district court refused to allow them to do so, finding that joinder of such lawsuits by prisoners was improper under Rule 20 given the "unique status" of prisoners. The third paragraph then says: 

"We reverse. The PLRA does not prohibit prisoners from proceeding together in lawsuits, and the district court’s denial of joinder was not based on the record before it."

What?! A pro-prisoner rights case from this panel?!

Then I get to the very next paragraph of the opinion, which starts to recite the law. It begins with:

"The idea that all citizens should have access to the courts no matter their ability to pay can be traced back to the Magna Carta. See John MacArthur Maguire, Poverty and Civil Litigation, 36 Harv. L. Rev. 361 (1923). England codified this principle in the late 15th century, guaranteeing that “the poor Persons of this Land” could bring suit for “the Redress of Injuries and Wrongs to them” without paying court fees. 11 Hen 7 c.12 (1495)." 

I started doubting that I had read the caption correctly. This is Judge Callahan speaking? It sounds like an opinion written by some mushy-headed liberal. Is she really waxing poetic about the Magna Carta, the need for even impoverished citizens to have access to courts, and the like? I felt like I was suddenly in Bizarro World, where everything was the opposite of normal. Had there been a serious transporter malfunction somewhere?

It takes me until at least halfway through the opinion until I start to realize what's going on. Yes, the Ninth Circuit is indeed reversing the refusal to allow the three prisoners to file a lawsuit together. But, at the same time, the panel is holding that if the three prisoners really want to file together, they have to each pay the full filing fee, as opposed to non-indigent prisoners, who only have to pay a single filing fee.

So poor people have to pay more than rich people.

Ah! Now I get it. Now I understand why the opinion has the judicial support that it does, as well as why Judge Graber partially dissents.

Now the world is the "normal" one I expect.

Carmichael v. Cafe Sevilla (Cal. Ct. App. - Jan. 25, 2025)

Conducting a rap competition on your premises in which various competing gangs sing rap songs and flash gang signs to opposing gang members in the crowd may well not entail an "ultrahazardous" activity under California law, as the Court of Appeal holds here.

Though I will add that it's not entirely un-hazardous as well. As the shootings here amply reflect.

Villagomez v. McHenry (9th Cir. - Jan. 24, 2025)

Based on today's Ninth Circuit opinion, here's how I (hypothetically) imagine the semester began when this case was assigned and being briefed:

"Hello there. Welcome to the Immigration Clinic at UNLV Law School. (Yes, I know our formal name is the William S. Boyd School of Law.) As you know, our clinic gets live cases from the Ninth Circuit and we brief and argue them, which is an exciting educational experience for not only the students, but the teachers as well.

We have a great one for you this semester. It's a case where the United States is seeking to deport a non-citizen of the United States -- Romio Villagomez, a citizen from the Federated States of Micronesia -- based on Mr. Villagomez's state law conviction. We think that Mr. Villagomez has a decent argument for remaining in the United States, because he's a good person and because while, yes, we was convicted, he received an entirely suspended sentence (of 24–60 months).

That's the good news. Here's the bad news. He was convicted of battery resulting in substantial bodily harm. And federal law expressly provides for deportation when a non-citizen has been convicted of a violent crime. So we'll be arguing that "battery resulting in substantial bodily harm" is not a "crime of violence."

Yes, that's what we'll be arguing. Not exactly intuitive, I know.

Here's the fun part, though. You'll get to know the ins and outs of the incredibly complicated distinction between the "categorical" and "modified categorical" and all the other detailed differences that exist in this particular doctrine. An issue that confounds (and often upsets) a huge number of appellate judges. Sounds exciting, right?

Good news, though. Most of the arguments on our side have already been made in a couple of Ninth Circuit dissents. So we'll often be just reiterating what smart people like Judge Fletcher has already said.

Though I want to reiterate that those were dissents. Our arguments already lost. And the panel we'll argue in front of will be bound by those decisions.

But, at the end of the day, we're going to argue that the existing Ninth Circuit holdings aren't dispositive. Because we'll say that they held that attempted battery is a categorical crime of violence, but in our case, we have a completed battery -- causing substantial bodily harm, no less. So we'll say that an attempt gets you deported, but a successful battery doesn't.

No, I did not get that backwards. That's what we're going to have to argue.

Oh, one last thing. I'm a little-known psychic, so I already know who our panel is going to be. It's going to be two Bush appointees and one Trump appointee.

What a fun semester it will be, eh?! On to victory!"

Yep. That's exactly how I imagine the conversation went.

People v. Brown (App. Div. Sup. Ct. - Jan. 22, 2025)

I'm always excited about published opinions from the Appellate Division of the Superior Court because they often involve oft-recurring conduct, which is often why the Appellate Division elected to publish the opinion in the first place. I am doubly interested when, as here, the opinion is from San Diego.

The Appellate Division holds here that someone who's on GPS monitoring isn't entitled to custody credits for that period. First off: I'm totally on board for that result. It seems entirely sensible and correct. If you're out of jail, on GPS monitoring, allowed to walk free about town as you wish, with the only limitation that you're not allowed to harass or get within 100 feet (or yards, or whatever) of a domestic violence victim and the like, yeah, that's not like being in jail -- or even on house arrest -- so, no, you don't get custody credits. (P.S. - You shouldn't be harassing people in the first place.)

So I'm extraordinarily sympathetic with the result.

But I actually think it's somewhat hard to actually get there given the actual law.

Under the statute and caselaw, you get custody credits in situations like the one here if you're in a program in which you're required to "(1) remain[] within the interior premises of his or her residence during the hours designated by the correctional administrator; (2) admit[] persons into his or her residence at any time for purposes of verifying compliance with the conditions of his or her detention; and (3) [wear] a GPS device or other supervising device."

There's zero doubt that Mr. Brown here meets the latter two requirements. He definitely has to wear a GPS device, and he had to submit a Fourth Amendment waiver as well. So the fight is only about the first of the three requirements.

And, as to that one, the Appellate Division understandably -- and correctly -- says that there was nothing in Mr. Brown's supervision that required him to be at home. He just had to stay away from the victim's work, home, etc.

So he wasn't required to "remain[] within the interior premises of his or her residence during the hours designated by the correctional administrator," right?

Not so fast.

Yes, it's true that the court didn't require him to remain at his home during any particular period. But that's just a different way of saying that "the hours designated by the correctional administrator" during which he was required to remain at home were zero.

The defendant in Gerson (the central case discussed in the Appellate Division), for example, was entitled to custody credits even though he has a ton of time in which he was free to roam outside of his home. He could be at work between 7 a.m. and 6 p.m. (and even as late as 8:30 p.m. on Wednesdays), could spend the night at his girlfriend's house three days a week (thanks!), could do personal errands for 90 minutes a day, etc. The restrictions changed over time, but the point is that at many points during which he was entitled to custody credits, he was not required to be in his home virtually at all -- and, when he was spending those three nights a week with his girlfriend, he might well spend ZERO time at his own home.

Imagine that the release conditions expressly said as; i.e., that initially he had to spend, say, 8 hours at his house, but eventually that time went down to 4 hours, then 1 hour, then zero. But he still had to wear the GPS and be subject to unannounced home searches. It seems to me like he's entitled to credits for all those days: it's just that, at the end, while he was indeed required to "remain[] within the interior premises of his or her residence during the hours designated by the correctional administrator," it turns out that those "designated hours" were zero.

How's that different than here? Where the court, essentially, says in the first instance: "Yeah, you gotta wear the GPS and be subject to home searches, but your 'designated hours' in the home are zero."

Or what about if the Court said "You gotta wear the GPS and be subject to home searches, and you are required to be in the home during any home search." That home search may only take 15 minutes, but the guy was nonetheless required to "remain[] within the interior premises of his or her residence during the hours designated by the correctional administrator," so he'd get custody credits for the full amount of time he was on GPS monitoring. (Not just the 15 minutes he was at home.)

The point is this: Textually, I think there's actually a decent argument that maybe Mr. Brown should get credit for his time. Even though the Appellate Division here thinks it obviously goes the other way.

One more thing. Somewhat of a double whammy for Mr. Brown.

Not only does Mr. Brown lose on the custody credit issue, but he apparently loses this issue even though no one raised it on appeal. The trial court gave him custody credits. His trial counsel filed an appeal, but then simply filed a Wende brief saying that there was no nonfrivolous appellate argument on his behalf. So Mr. Brown was basically an automatic loser.

But then the Appellate Division sua sponte raised the custody credit issue, and found against the guy on the merits.

So the guy ends up net negative on his own appeal. He appealed based on nothing. The City Attorney didn't appeal at all. And yet the guy ends up spending more time in prison.

He'd have been better off never even filing an appeal.

Tough for the guy, eh?

Again, I'm extraordinarily sympathetic to the result. You shouldn't get custody credits, in my view, if you're solely on GPS monitoring rather than actual house arrest.

It's just not so easy to get to that result as it might otherwise appear.

People v. Villagrana (Cal. Ct. App. - Jan. 21, 2025)

The Attorney General rarely concedes error in a criminal case. Particularly, as here in a murder case.

It's even rarer for the Court of Appeal to nonetheless reject that concession. Yet it happens today.

It's a resentencing case, and the Attorney General admits that on the limited record introduced in the trial court, there was insufficient evidence to prove that Javier Villagrana -- who pled no contest to voluntary manslaughter -- was actually guilty of murder. Nonetheless, Justice Yegan, joined by Justice Gilbert, holds that he was in fact guilty of murder, and hence ineligible for sentencing. Justice Baltodano dissents.

It's a fact- and record-specific case, so ordinarily, I wouldn't think that the matter would go any further. But given the stakes, as well as the disagreement in the panel, I wouldn't be extraordinarily surprised if the California Supreme Court granted review.

I suspect -- strongly -- that Justice Yegan is correct that Mr. Villagrana was in fact guilty of actual murder. But I also suspect that Justice Baltodano might well be correct that the actual evidence introduced in the trial court below was insufficient to support that conclusion. Because, at least in theory, there may perhaps be lots of ways in which Mr. Villagrana could have been only guilty of voluntary manslaughter, rather than murder, that are consistent with the limited record introduced below.

We'll see if this piques the attention of anyone higher up.

Mamer v. Weingarten (Cal. Ct. App. - Jan. 17, 2025)

I'm going to have to add today's opinion to my current seminar class (taught Friday mornings) on the Law of Intimate Relations. The Court of Appeal holds -- seemingly for the first time -- that, in California, a trial court has discretion to order a biological mother to reimburse the biological father for one-half of the costs of an in vitro fertilization procedure they used to conceive a child.

To be clear, the Court of Appeal doesn't say that the trial court is required to make such an order; only that it may permissibly do so in its discretion. Moreover, here, the mother allegedly agreed to pay half of the IVF costs -- though the Court of Appeal holds that this agreement is only one of the various factors that the trial court might consider in exercising its discretion. (Accordingly, it may well be that, in a different case, a mother might perhaps be permissibly ordered to reimburse these costs even if she never agreed to do so.)

The Court of Appeal holds that the relevant statute authorizes such an order, and it's easy to see why. Section 7637 of the Family Code provides: "The judgment or order may direct the parent to pay the reasonable expenses of the mother’s pregnancy and confinement.” Well, the costs of IVF do indeed facially seem to be part of the "reasonable expenses of the mother's pregnancy." So you can see why the Court of Appeal holds that the statute means what it says.

Mind you, sometimes, we create public policy exceptions to otherwise clear statutory mandates. For example, one of the topics we discuss in my seminar is whether a parent can sue the other parent for fraudulently saying they're on birth control when they're not, and thereby recover the expenses that the defrauded parent was required to pay for the child. There's a rule against fraud, of course, but lots of cases hold that our public policy desire for child support, or other social principles, trump the usual rule in this context. You could see a similar argument here, and one might argue that we don't want fathers being able to sue for IVF repayments because it might reduce (or at least offset) child support payments made to the mother, it might be inequitable since both parties consented to the creation of the child (somewhat akin to an "assumption of the risk" argument), etc.

But, at least for now, repayment for half of the expenses of IVF is on the table.

Cole v. Superior Court (Cal. Ct. App. - Jan. 15, 2025)

You probably remember (perhaps vaguely) from constitutional law the difference between how laws against a suspect class are treated (for which strict scrutiny review applies), a non-suspect class (for which rational basis review applies), and a quasi-suspect class (for which intermediate scrutiny applies). By applying different scrutiny to laws against different groups, the judiciary's doctrinal jurisprudence attempts to ensure that everyone does indeed receive equal protection of the laws while nonetheless authorizing the government to make permissible and supportable distinctions between different groups.

This tripartite jurisprudence, however, requires us to figure out which groups belong in which category. An undeniably difficult task.

Racial distinctions get strict scrutiny. Understandably so. (Ditto for alienage and national origin.) Gender distinctions receive intermediate scrutiny. (Same for illegitimacy.) Lower-level distinctions -- for example, laws that distinguish between different types of hot dog vendors -- receive only rational basis review.

Deciding which category different groups falls into involves several different factors, but the biggest (and most expansive) one is basically how these groups have been historically (mis)treated. The bigger the history of misconduct and discrimination, and the more the particular group has historically been excluded from the overall public sphere, the higher the level of governmental review.

Which makes sense. The more we know that a group is historically discriminated against, the more we should be cautious that existing governmental distinctions continue -- or are a vestige of -- that historical discriminatory treatment.

This Court of Appeal opinion involves the question: What category of equal protection review applies to laws that differentially affect people with an intellectual disability (i.e., in the language of old opinions, the "mentally retarded")? Strict scrutiny? Intermediate review? Rational basis?

If you were on the California Supreme Court (or the United States Supreme Court), what would you decide?

There's no doubt that, like race or gender, developmental disabilities are fairly immutable. There's also a fairly long and substantial degree of discrimination. Indeed, at one point in our nation's history, the U.S. Supreme Court even approved the involuntary sterilization of individuals based upon that characteristic.

So how does this group compare to race-based, or gender-based, or other group-based discrimination, in your view? What level of scrutiny would you apply given this historical (and perhaps contemporary) treatment)?

The Court of Appeal says that rational basis review applies.

Do you agree?

L.W. v. Audi AG (Cal. Ct. App. - Jan. 15, 2025)

If you were a huge nerd in law school and are just itching for more personal jurisdiction hypotheticals, take a look at today's opinion from the Court of Appeal, where the issue is whether Audi AG -- which is the German parent -- can be sued in California for selling a defective Audi in California through its U.S.-based distributor.

Fortunately, you've got a "model answer" that goes both ways. The majority says that Audi AG can indeed be sued here, whereas the dissent says that, at least on this record, it can't.

So your answer is "right" either way. Depends on which professor grades your exam.

(Coincidentally enough, first-semester 1L grades just came out today at my school, so I'm definitely in an exam-pondering -- and exam-grading -- mode.)

Nissanoff v. UnitedHealthcare Ins. Co. (App. Div. - Jan. 14, 2025

I'm confident that the appellant, surgeon Jonathan Nissanoff, is an exceptionally bright person. But he's bringing an appeal on a quite complicated legal issue -- whether the Knox-Keene Act properly applies to the particular insurance company at issue in this lawsuit.

And he's doing it pro per.

I'm a reasonably intelligent person as well. But just like I wouldn't conduct surgery on myself, I'm not certain that Dr. Nissanoff should have represented himself on appeal.

The Appellate Division affirms.

In re Marriage of Goldman (Cal. Ct. App. - Jan. 10, 2025)

When I first started reading this opinion, I was disinclined to believe the Court of Appeal's result. The parties got divorced in 2009, there were letters back and forth about what stock was to be split etc., the parties discussed the matter in 2010 and their lawyers sent letters back and forth, but then basically ended their discussions and let the matter stand as it was.

Fast forward to 2018 and 2020, when the ex-wife restarts the process by filing various motions with the trial court, which dismissed them based on laches. That sounded about right to me; there was zero reason for this eight-year delay.

But the Court of Appeal reverses. As I said, I was initially dubious.

Ultimately, however, Justice Dato's opinion persuades me. Maybe there was the required prejudice, but maybe not. We'll have to learn more, precisely along the lines his opinion discusses.

I'm convinced.

Oh, and since the case arose in San Diego, I felt like looking up the parties a tiny bit. The ex-husband is a cosmetic dermatologist down here, and apparently does extraordinarily well. The ex-wife also has a very interesting story; here's her quite expansive take ("Truth vs. Lies") on her life and the underlying marriage.

Interesting stuff.

People v. Superior Court/White (Cal. Ct. App. - Jan. 13, 2025)

That's a huge, huge swing. From the original life without possibility of parole -- the sentence imposed by the trial court -- to a resentencing under newly-enacted Section 1172.6 of . . . two years.

To reiterate: from LWOP to two years.

Huge swing.

Today's another huge swing. The Court of Appeal reverses the two-year resentencing and reimposes the LWOP sentence.

Not a good day at all for Mr. White.

Mourn Away (Cal. Cts. - January 9, 2025)

There were some unpublished Court of Appeal opinions today, but nothing published by the Ninth Circuit, the Court of Appeal, or the California Supreme Court. Permitting you -- and me - to devote our full time to work, play, and/or officially mourning President Carter.

I'll say this. Whatever you thought of the guy -- and there are very strong opinions on that point -- I can't think of any former president who lived a classier post-office life, or one more worthy of respect for that period of time.

On the Ninth Circuit side, maybe also spend a tiny bit of time today to give a shout out, or at least some thought, to the three judges appointed by President Carter who are still amongst us and serving as senior judges: Judges Schroeder (age 84), Canby (age 93), and Dorothy Nelson (age 96).

Way to go.

Pollack v. Kelso (Cal. Ct. App. - Jan. 8, 2025)

I know that Justice Wiley wants to dispense with appeals relatively concisely, and maybe eight double-spaced pages (the substance is actually less than that) is indeed all one needs to resolve this particular appeal, but is this opinion really right on the merits?

Plaintiff sues for harassment (among other things), loses on summary judgment on statute of limitations grounds, and that loss -- and the resulting cost award for the employer -- gets reversed by the California Supreme Court, which then remands the case to the Court of Appeal.

Once the case is back in the Court of Appeal, it then gets remanded for trial (remember that it was initially dismissed on summary judgment), with "costs" to the plaintiff.

Then, once back in the trial court, as the case gets ready for trial, the trial court awards plaintiff a little under $500,000 in attorney's fees. Reasoning that the "costs" awarded by the Court of Appeal includes attorney's fees since it's a harassment and discrimination case.

Defendant then files an appeal of the interim fee order. Saying that the fee award was unjustified because, amongst other things, the plaintiff hasn't yet prevailed. Sure, they won their appeal. But the trial has not yet even happened. So there's no prevailing party.

Let's stop there for now. (Though, as you'll see, there's more.)

At this point, I think the defendant's right. Let's assume, for example, that the plaintiff went to trial and lost, with the jury holding that there was no harassment or discrimination. I think it's pretty clear that in such a setting, the plaintiff's not the prevailing party, and hence not entitled to fees. The fact that you win on appeal and reverse an interim order (there, and MSJ) doesn't mean you're entitled to fees.

So I'm fairly confident that the defendant is right. There shouldn't have been a fee award in the trial court in the first place.

I'm not sure that Justice Wiley (or the rest of the panel) disagrees with this.

But wrinkle here is that after the fee award, and after the fee award was appealed, one month before the trial was about to start, the parties settled their dispute (except for the fee award). And even though that settlement agreement was confidential, and is not part of the existing appellate record, for the reasons amply explained in today's opinion, I'm confident -- as is Justice Wiley -- that this agreement means that plaintiff was the prevailing party in the underlying litigation; i.e., that she got paid (moreover, that as part of the settlement agreement itself, the plaintiff was perhaps expressly declared to be the prevailing party).

Okay. So where does that leave us?

For Justice Wiley, it makes resolving the appeal fairly easy. He says that regardless of whether the fee award was proper when it was made (which, again, I think it wasn't, because it was premature at that particular point), the fee award is now proper because, at this point, the plaintiff's the prevailing party since she settled.

To use the language of the opinion: "For purposes of analysis, we assume the trial court erred by concluding before trial that Pollock was a prevailing party. Since then, however, the parties have settled and the case is concluded, save for this fee issue. We hold any assumed error was harmless."

That seems fair to me. As far as it goes, anyway. I agree, on these facts, that the plaintiff's the prevailing party. Would it be better if that settlement agreement was a part of the appellate record -- which it's not, even though plaintiff is more than willing to make it so? Yes, it would. But I understand why Justice Wiley wants to expedite this resolution and not just remand to make the settlement part of the record and then reinstitute the exact same appeal. She's the prevailing party. We effectively know that. So we can move forward.

This much I agree with.

The wrinkle's the second part. Because it relates to the first -- in my view, in a way that today's opinion may not sufficiently appreciate (or discuss).

Defendant also objects to the size of the award -- nearly half a million dollars. Justice Wiley rejects the defendant's quibbles with the award by granting deference to the trial court on these issues that would ordinarily, in a typical case, be entirely appropriate. So the Court of Appeal affirms the award in its entirety.

But that doesn't seem right to me. Again, I'm persuaded that the plaintiff is the prevailing party. But we don't know how much she's the prevailing party -- i.e., what result she obtained in the settlement -- and neither did the trial court when it issued the award. Because the trial court granted the fee award a full year before the case settled, under the (mistaken, IMO) belief that it was required to do so since the Court of Appeal had awarded plaintiff "costs" on appeal.

So, for example, the trial court ordered a 1.8 multiplier to fees. I agree with Justice Wiley that such a multiplier might well be justified -- and often is -- due to the contingent nature of plaintiff's recovery and the fact that unlike the defendant's lawyers, who are paid hourly, plaintiff's lawyers only recover if they win. That's a legitimate reason why, in some cases, a multiplier might be justified.

But whether a multiplier is justified also depends, in part, on the results achieved as a result of the litigation. Ditto for the reasonableness of the number of hours and many other factors relevant to an ultimate fee award. And the trial court didn't know those results because they hadn't yet transpired at the time of the fee award.

Let's say, for example, that under the settlement agreement, plaintiff received a mere $100 (or make it $10,000 if you'd like). That's a win. She's the prevailing party. She's entitled to some degree of fees.

But it's entirely within the court's discretion to take the extent of that win into account when it decides the reasonableness of fees, the extent of any potential multiplier, etc. If, say, she was asking for $50 million, and only received $100 (or $10,000), a court might well act within its discretion to consider the limited extent of that victory and, on that basis, decide not to award $500,000 or so in attorney's fees.

Now, could the trial court award $500,000 in fees notwithstanding such a limited victory? Sure. At least for the $10,000 win. (I'm not certain about a $100 win; it probably could, but it's be harder.)

But the point is that the trial court here did not, in fact, make such a discretionary assessment. If only because it couldn't. The case hadn't even settled yet. And it also (mistakenly) believed that a fee award was mandated regardless of ultimate victory (or defeat) at trial or settlement because the Court of Appeal had awarded costs on appeal.

So I think the Court of Appeal does, in fact, have to remand. It may well be that the trial court, after looking at the settlement, will conclude that the plaintiff was a prevailing party and is entitled to the full amount (nearly $500,000) of the fees it was previously awarded.

But it could also go the other way. If the settlement is a tiny one, the trial court could, in the exercise of its discretion, award less. That's their call. A call that it hasn't already made with full recognition of the relevant law and facts.

So it's doctrinally wrong, in my view, for the Court of Appeal to hold that "any assumed error was harmless." Maybe it was harmless. Maybe it wasn't. We can't tell until the trial court evaluates the relevant information (the settlement) that it didn't possess previously and that might, potentially, alter the exercise of its permissible discretion.

In all likelihood, I think that, as a practical matter, the trial court will probably not be affected by the size of the settlement (which I suspect was nontrivial) and will award the same amount it awarded (based on an erroneous view of the law) the first time.

But maybe not. So we gotta give the relevant decisionmaker -- the trial court -- the chance to evaluate all the relevant information and apply the applicable law.

So I would have remanded rather than affirmed. I think that's the doctrinally correct result.

People v. Collins (Cal. Supreme Ct. - Jan. 6, 2025)

There was only one published opinion from the Ninth Circuit and the California appellate courts yesterday, and it's this one. 

In all honesty, I'm not sure that you should read it. The facts are sufficiently brutal -- the killing of a two-month old baby by his father, and the second-degree murder conviction of the mother -- that it might be too disturbing of a read for some. Moreover, unlike many opinions with gruesome facts, the opinion is all about the sufficiency of the evidence, so it's 108 pages of fairly consistent ugliness.

If you can get over that, though, it's a fairly rare California Supreme Court opinion where the justices are not only split, but where all sides make super good points. As a result, figuring out which particular group of justices you personally agree with is potentially a challenge, but an important one. Whichever way you come out, I suspect you'll care about the result. 

Justice Evans authors the majority opinion and holds that the evidence was insufficient to convict the mother of second degree murder. Justice Liu writes a concurring opinion that discusses at some length why gender stereotypes about mothers could (and does) lead to a disproportionate number of them (as opposed to fathers) being prosecuted and convicted of failure to protect a child. Whereas Chief Justice Guerrero authors a dissent, arguing that the evidence against the mother was sufficient to support the conviction for second degree murder.

I'm honestly not sure which position I agree with most. This is, in my view, an exceptionally tough case. On the one hand, I have no doubt that the mother didn't want her baby murdered, and had she known for sure that the father was going to kill him, would have done something. On the other hand, there were an incredibly large number of events that a jury could reasonably find indicated a severe risk of harm to the infant: the father threatening to kill the baby even before his birth, the father's prior abuse of the child, his prior jabbing with the screwdriver at the mother's stomach while she was pregnant, the mother's efforts to protect the father after the murder, etc.

Tough. Super tough.

Grimm v. City of Portland (9th Cir. - Jan. 3, 2025)

I think that reasonable minds might well be persuaded by most of the things that Judge Thomas says in her opinion this morning. But its penultimate page -- and the final footnote -- nonetheless seem wrong to me.

Andrew Grimm parked his car on a street in Portland, used a mobile app to pay for a little over an hour of parking, but then left the car there for nearly a week. Predictably, during that week-long period, a slew of parking tickets were issued to the vehicle, all of which piled up under the vehicle's windshield wiper, until eventually the City towed the car. It cost Grimm $500+ to get the vehicle back, so Grimm sued, claiming that the City's seizure of his vehicle failed to comply with procedural due process.

The Ninth Circuit holds that putting numerous tickets on the vehicle, plus a red slip placed under the windshield wiper two days before the vehicle was towed that expressly said that the vehicle would be towed if it wasn't moved, complied with the requirements of procedural due process. You can likely understand why a court might well come to that conclusion, as the district court did when it granted the City's motion for summary judgment and as the Ninth Circuit did when it affirmed that result.

So reasonable minds might well agree on that outcome.

The rub, though, is the Supreme Court's decision in Jones v. Flowers. That case holds that even when the government has attempted to provide constitutionally adequate notice (e.g., there, by sending a certified letter), if the government nonetheless knows that its normally-effective notice did not, in fact, reach the recipient, then due process might well require additional, more extensive efforts at notice before the government may seize the individual's property.

In my view, that's Grimm's best argument. Yes, normally, putting a ticket on an automobile would count as adequate notice. But the tickets on the vehicle piled up for a full week, apparently untouched. That, he says, should have informed the City that he probably didn't receive notice of the tickets, so additional efforts at notice were required under Jones before his property was seized.

Judge Thomas responds to that argument on the next-to-last page of her opinion. She says that even though the tickets were piling up under the windshield wiper, "[v]iewing the evidence in the light most favorable to Grimm, we cannot draw a reasonable inference that the City ever became aware that its attempt to notify him of the impending tow had failed."

Respectfully, I very much disagree.

A reasonable person could easily conclude that it's extremely likely that Grimm never received actual notice that his car was about to be towed; i.e., that he never saw the tickets that were piling up on his vehicle. Indeed, I'm precisely such a reasonable person, and that's definitely my conclusion. Usually, one removes a parking ticket once one receives it. Moreover, almost always, once tickets start piling up on your vehicle, you move the thing. And definitely, almost without exception, once you see a big red sticker under your windshield wiper that says your car will be towed, you drive it away, lest it in fact be towed.

This is my experience. This is pretty much everyone's experience, in my view. Which is why a reasonable jury on these facts would almost certainly conclude that Grimm did not, in fact, receive actual notice of these tickets before his car was towed. Something that the City, which is staffed by a legion of reasonable people, would know as well.

Is is possible that Grimm saw the tickets, read them, put them back, and simply figured "Ah, heck, I'm sure this will turn out just fine for me?" Sure. It's possible. Just like it was possible that, in Jones, the recipient of the letter knew his house was about to be seized but simply neglected to respond. But the fact something is possible doesn't mean that it's likely, and here, a reasonable person would (and surely could) nonetheless conclude that it's far more likely that Grimm did not, in fact, receive actual notice of the tickets and impending tow.

I'll prove it to you. You're presumably a reasonable person, right? I've hooked up Grimm to a foolproof polygraph machine and asked him whether he ever saw the tickets on his vehicle before it was towed, and he gave an accurate answer confirmed by that machine. I'll also give you $100,000 if you correctly guess which way Grimm answered. Which way will you bet? Do you think he got actual notice or not?

(To be clear: This is a hypothetical. I have no such machine, and will never actually give you money.)

I'd predict that 99 out of 100 of you would bet, as I would, that Grimm never saw the tickets, and never knew his vehicle was going to be towed. Maybe he was out of town. Maybe he was on a bender. Maybe he just forgot. But I bet he never saw the tickets, and think that a reasonable jury could definitely agree with me on this one.

So "[v]iewing the evidence in the light most favorable to Grimm," a reasonable jury could indeed draw a reasonable inference that the City, like the rest of us, had reason to know that its attempt to notify him of the impending seizure of his property did indeed fail. Just as in Jones.

Which in turn means that you've got to reach the relevant prong in Jones, which is whether or not there were reasonable alternative means of providing additional pre-deprivation notice to Grimm, beyond the normally sufficient notice provided by the ticket, before the vehicle was towed. Notwithstanding the final footnote of Judge Thomas' opinion, which asserts that "[b]ecause the City did not have actual knowledge that its attempt to provide notice had failed, we do not reach the question whether any additional forms of notice would have been practicable under the circumstances."

I think you have to reach that issue.

Nor is Ninth Circuit precedent to the contrary. It's true that at least one prior case, Clement, said at one point that placing a ticket on a vehicle in some circumstance "can also serve as notice" that the vehicle might be towed. But while it "can" serve as such notice, in can also not serve as such notice, as when (as here) the tickets are simply piling up untouched. (You can think of additional hypotheticals as well; for example, a ticket placed on a vehicle in, say, an evacuated Chernobyl.) Moreover, the Clement case involved a vehicle towed after a single ticket was placed on the vehicle, and the Ninth Circuit held that the ticket did not provide constitutionally adequate notice of the impending tow. It's hard to argue that that prior opinion is somehow inconsistent with a holding that you gotta do more than just pile tickets on a vehicle before you tow it, no matter how easy or feasible it would be to provide additional notice as well. Especially since Clement itself suggested additional ways that it thought would be manifestly reasonable to provide additional notice in that particular case beyond merely sticking a ticket on the car's windshield; i.e., it's suggestion that "the officer might have written a ticket and left it at the front desk of the hotel, with a verbal warning that the car had to be moved or registered."

(Plus, if you really wanted to be consistent with Clement, you'd probably want to at least mention the numerous statements therein that towing someone's vehicle is quite a serious deprivation of property, as opposed to today's statements that the deprivation here was not nearly as significant as the deprivation in Jones. The latter statement is true, but the former are also true, and quite worthy of consideration and mention.) 

The long and short of this is that I think the Ninth Circuit (and the district court) did, in fact, have to consider whether alternative means of providing notice were reasonable here. A test that is not only required by Jones, but is eminently reasonable as well. Imagine, for example, that there was a button on the vehicle -- sort of like OnStar, but for towing -- that the police officer writing the ticket could push to let the owner know that his vehicle was illegally parked and would be towed if unmoved. Surely due process would require that the officer push the button before ordering a tow, right? At least when, as here (and as in Clement), the vehicle's parked in a legal space, not in traffic, not blocking a fire hydrant, etc.

Now, maybe the police officer here didn't have the phone number, or the email address, that Grimm used to initially pay for parking with the mobile app. But the City surely had the registered address for the vehicle owner, as well as the lienholder (who definitely cares if the vehicle is towed). It might have had additional ways of contacting him as well. That's something that might require a remand. But, if so, great. Remand away.

But, to me, it's just not right to say that the City had no reason to know that Grimm never saw the tickets. A reasonable jury could well conclude to the contrary; accordingly, entry of summary judgment on the present record would be inappropriate. You have to investigate the potential alternative means of notice and whether they're reasonable.

In my view, anyway.

Charlie L. v. Kangavari (Cal. Ct. App. - Jan. 2, 2025)

The 2/2 publishes this interesting opinion on 1/2, ringing in the New Year. It creates a split with the Fifth District on an issue that I suspect occurs reasonably often: Whether the pro-defendant medical malpractice provisions of Section 1799.110 apply to emergency room doctors who work outside the E.R. -- here, the radiologists who review x-ray and other medical records off site.

The Fifth District held that they did not, whereas the Court of Appeal here holds that they do.

I'm tentatively going with the Fifth District on this one, notwithstanding Justice Hoffstadt's very good arguments to the contrary.

Section 1799.110 generally makes it more difficult to sue doctors who work in the emergency room, on the theory that we need doctors in that area (so don't want to overly burden them with high malpractice premiums) and that the often frantic nature of work in the E.R. makes the "normal" malpractice rules somewhat inapplicable. That statute clearly applies to, for example, the doctor who's actually working on you in the emergency room.

But what about a consulting radiologist? Radiologists (as I understand their practice, anyway) generally are not actually in the emergency room, but are rather working at their homes or offices, and receive the x-rays or MRI images remotely, review them there, and then relay their results back to the relevant E.R. personnel. Are those doctors equally protected by Section 1799.110?

Today's opinion holds that they are. There's a textual argument for that result (of course), but the basic intent and policy arguments that support that result are that radiologists who support E.R. services, just like the doctors who are physically located there, "must make instantaneous decisions on the diagnosis and treatment of emergency patients without the benefit of time to review [the patient’s] past medical history, seek a consultation, study current medical literature, [or] reflect upon the proper diagnosis and course of treatment.”

That's true, I think. But only to a degree.

The radiologist here was asked for a "stat" consult regarding a three-year old child who was taken to the emergency room in Whittier by his mother. The child, Charlie, "had been in and out of hospitals for conditions related to a malrotated bowel he had at birth," and the question was whether he had a bowel obstruction. If he did, that's a serious issue, and requires treatment. So they took x-rays and an MRI and sent them to an offsite doctor (presumably working out of his home and/or in another time zone, since it was 3:00 a.m.), who read the images and confirmed that there was no bowel obstruction. So they sent the child home.

But the doctor was (allegedly) wrong, and "[s]oon after returning home, plaintiff vomited and turned blue. His parents brought him back to the emergency department at 8:18 a.m., nonresponsive with a faint pulse and not breathing. Plaintiff was transferred to Children’s Hospital Orange County later that morning, where he underwent multiple surgeries over the next three days to remove necrotic tissue and the majority of his small bowel due to a lack of blood flow caused by a bowel obstruction. Plaintiff now suffers “short gut syndrome,” has to be fed with a G-tube, wears diapers at all times, and struggles with speech and other mental and emotional capabilities."

Hence the lawsuit.

The doctor moves for summary judgment, and to keep things (somewhat) brief, the dispositive issue there is whether Section 1799.110 applies. As I said, the Court of Appeal holds here that it does.

I think it's right that the radiologist here was under some degree of time pressure, and didn't have the ability to consult a full medical history, "study current medical literature," and the like. But I'm not sure that this really matters, especially in a case like this. I strongly suspect that radiologists who receive and interpret remote x-ray and MRI images exceptionally rarely rely on a "full medical history" to interpret those images, much less "study current medical literature" in the midst of their interpretation. I imagine that, most of the time, they do precisely what I expect was done here: they get a basic medical history (here, that the patient had a malrotated bowel at birth), rely on their expertise, look at the pictures, and report what, if anything, they see. 

And, critically, they do that exact same thing for both emergency room and non-emergency room images. They're trying to see if a bowel is obstructed, a bone in broken, a heart is swollen, etc. If it is, then that's important, and potentially life-critical. If not, great. It's the same basic task, and the doctor accomplishes it in the same fundamental fashion.

Are there some additional time pressures potentially associated with a "stat" radiology consult? Yes, I suspect. In a way. It definitely means that the doctor can't dilly dally. We need to know the answer fairly rapidly. So it's not like a "regular" x-ray where maybe the doctor can take a day or two to get around to it. Hence the 3:00 a.m. consult here, and why radiologists (like this one) are assigned to be "on call" at all hours of the day and evening.

But that doesn't necessarily mean that an immediate -- or even shortened -- review is required. Here, for example, the child's "X-ray was taken at 3:12 a.m. and Kangavari issued a report based on the images at 3:51 a.m." and the child's "ultrasound was taken at 3:24 a.m. and Kangavari issued another report based on those images at 4:35 a.m." So it took a half-hour to examine and report on the x-ray and over an hour to examine and report on the MRI. I strongly doubt that examining non-ER images takes any different time period; in other words, that the doctor did indeed examine these images as soon as possible ("stat"), but that they nonetheless simply went through the normal review process -- the exact same process applied to non-ER images.

So was there "time pressure" for the doctor's review? Sort of. But not the type of "time pressure" that led to the special provisions of Section 1799.110. What the Legislature was worried about there was that doctors who have to treat patients extremely expeditiously -- e.g., in "meatball surgery" (for those old enough to remember M*A*S*H) -- shouldn't be subjected to the same sort of "second guessing" than "normal" doctors. Hence the special rules. 

But here, there's no shorthand. No different process at all -- or at least none that I can see.

Instead, to take an analogy from my own academic practice, there was indeed "time pressure" -- the same kind of "time pressure" that applies when the Dean instructs you to grade a set of final exams for a graduating senior -- but that doesn't at all mean a different level of review. Do you put those set of 3L exams on the top of the pile? Yes. Just like the radiologist here puts "stat" images at the top of her pile. But the substantive review is the same. There's no shorthand. It's just that one set of documents is more time-urgent than the other. You give them the same review, the same basic time, and the same basic result. If so, it seems unnecessary to give "special protection" to one type of image review over the other. Just like we give the same basic protection to law school grades given to graduating 3Ls and non-graduating 2Ls. One set of exams is more "urgent" than the other, but the same basic rules apply.

Ditto for "stat" car repairs, childhood chores, or the like. Yes, we ask them to fix that car, or take out that trash can, immediately, because we need that car (or the trash truck is coming) tomorrow, so it can't take the weekend. But the substantive standard is the same. So too here, I think.

So if I had to choose, my tentative thought it to go with the earlier Fifth District's opinion on this one. At least in this context. 

I might at least hypothetically imagine different contexts in which I might go the other way. If, for example, there was a patient having an apparent heart attack, and there was a remote consult where the radiologist only had, say, 30 seconds to make a determination of whether it was a blockage as opposed to an aneurysm, okay, maybe that's the kind of time pressure that supports a different standard. We can't expect "normal" procedures and standards to apply in that particular context. Just like, in our world, we would not expect the ordinary standards of lawyerly skill to apply to emergency appellate briefs that we are ordered to prepare and file within 24 hours as opposed to those we have the freedom to prepare over several months.

But in the present case, I'm just not sure that Section 1799.110 rightfully applies.