Collins v. Waters (Cal. Ct. App. - May 10, 2023)

Let me just say at the outset: I have one really big question for Justice Wiley after reading this opinion from earlier today. More on that in a second.

The opinion is about a defamation lawsuit that Joe Collins brought against Maxine Waters. Mr. Collins ran against Ms. Waters for a seat in Congress in 2020. (By way of background: Maxine Waters has been in that seat for three decades, and is relatively famous in SoCal. The 2020 election, quite predictably, wasn't close. Ms. Waters got over 70% of the vote, and won easily -- just as she has in each of the elections since 1990.)

During the election, Ms. Waters said that Mr. Collins had been "dishonorably discharged" from the Navy. That wasn't exactly true, or at least, it was somewhat ambiguous. It turns out that Mr. Collins had been discharged from the Navy for "serious misconduct" -- that's what his DD-214 says -- and apparently had been disciplined "for providing alcohol to an underage sailor and for having sex with a service member under his command." (Classy.)

But there are multiple types of military discharges. There's an "honorable discharge" -- the one that the vast majority of service members receive, and the one that the public is most familiar with. Then there are four others, all of which are "less-than-honorable" and starting (in terms of the severity of misconduct) from "general" to "other than honorable" to "bad conduct" and then to "dishonorable". It looks like Mr. Collins got the first of these "less-than-honorable" discharges: a general. Which a person who wasn't being particularly precise -- or didn't know the details of the military's separation regime -- might perhaps call a "dishonorable" discharge, but which is technically a couple of levels about a pure "dishonorable".

So, like I said, after losing the election (badly), Mr. Collins sues.

Predictably, Ms. Waters files an anti-SLAPP motion, which the trial court grants. It's crystal clear that the first prong of the anti-SLAPP statute applies, since it's public statement on a public issue, and we surely want electoral discourse to be free and open. The relevant issue is simply whether Mr. Collins can show a probability of success on the merits.

The core problem for Mr. Collins in this regard is that to prevail against a public figure (as here), he's got to have evidence of "actual malice" in order to overcome the constitutional protection for free speech in a case (as here) involving a public figure. That doesn't necessarily mean ill will. But it's at least got to be a case of reckless indifference to the truth. Worse, for Ms. Collins, is that he's got to show this by "clear and convincing evidence." Which means "evidence [] such as to command the unhesitating assent of every reasonable mind."

The trial court held that he didn't have such evidence against Ms. Waters. And without describing in exhaustive detail all the reasons that Ms. Waters might well have reasonably believed that Mr. Collins was, in fact, dishonorably discharged, suffice it to say that there was a lot. (Including, but not limited to, being expressly told that by a Navy lawyer, plus a published federal court opinion involving a lawsuit filed by Mr. Collins that expressly said that Mr. Collins had received a "dishonorable discharge" from the Navy." Pretty powerful evidence, no?)

But here's the best thing in that regard for Mr. Collins. He puts up on his Facebook page a copy of his DD-214. The official document that says why you're discharged. And right on that document, it clearly says that he received a "general" discharge. Sure, the DD-214 also clearly says that the discharge was for "serious misconduct." But if the DD-214 is accurate, and if you know the details about the levels of military discharges, you'd know enough to know that Mr. Collins did not, in fact, technically receive a "dishonorable discharge."

The thing is, though, that Ms. Waters thinks that the DD-214 that Ms. Collins posted on the web was a fake. And, honestly, there's darn good reason for her to think it might be. Because it's crystal clear that reasonable minds might well come to the conclusion that Mr. Collins is, shall we say, occasionally less than fully forthright or trustworthy. Witness, to take just one example, yet another lawsuit filed by Mr. Collins in which he disputed an obligation to pay child support and claimed damages of $100 million, and in which he filed documents showing he had purportedly created a “Royal Family of Collins Trust” into which he had placed assets like his birth certificate—an asset Collins claimed had a value of $100 billion, and which claimed total assets of over $700 billion.

Uh, yeah. If that's the kind of stuff you're filing in court, call me crazy, but I'm not exactly going to take your word for it that the DD-214 that you've posted on Facebook ain't a Photoshop Special.

But Justice Wiley's opinion reverses the trial court. He thinks that reasonable minds might reasonably think that there's "clear and convincing" evidence that Ms. Waters was recklessly indifferent to the truth because she didn't investigate further the alleged validity of the DD-214. That's unambiguously why the opinion comes out the way it does. Here's the money quote from the opinion, one that -- if true -- I think goes a long way in explaining why Justice Wiley's view might perhaps be correct:

"Perhaps the document was a total fake. These days, anyone with skills can alter documents or create them from scratch on a laptop at home. At oral argument, Waters rightly emphasized that software is making it ever easier to concoct screen images that look genuine but are not. 

But official documents can be checked officially. It could only have been to Waters’s electoral advantage to expose Collins’s fabrication, if fabrication it truly was. And the official check was easy to do. That fact—that it would have been easy to check—is in the record and is undisputed."

Okay, after all this, we've finally gotten to the central question I had when I first read the opinion:

Are you sure about that, Justice Wiley?

The opinion repeatedly relies upon ease of checking with which Ms. Waters could have conducted an "official check" of the the validity of the DD-214 posted on the web. Just a few examples: "When you face powerful documentary  evidence your accusation is false, when checking is easy, and when you skip the checking but keep accusing, a jury could conclude you have crossed the line." "Collins showed Waters had failed to take an easy and conclusive step to ascertain his discharge status. In the face of facially valid proof of error, this failure created a permissible inference of willful blindness." "It would have been easy for Waters then to check, but Waters kept repeating the accusation without checking."

I get it. If, indeed, all you have do to check get a DD-214 for someone is to go to the post office or submit a FOIA request or something like that, they yeah, I can see why that might be willful blindness.

But are you sure it's really that easy? Because the opinion nowhere explains how, in fact, you go about getting someone's DD-214, or how "easy" that process is. And then, when I looked up on Mr. Google just how easy it is to get a copy of someone's DD-214, every single hit I looked at expressly says that they're not public documents and you're not allowed to get them. This seems confirmed when I look at the VA's website and the National Archives website as well. The service member or the next of kin can get 'em -- and, presumably, photoshop them if they'd like. But not someone like Ms. Waters.

So I'm not exactly sure that it is, in fact, easy to verify this purportedly official record. And I search in vain in the opinion for evidence that it's true.

Now, Justice Wiley's opinion does say that the fact that it's easy to check "is in the record and is undisputed." Maybe it is. But I went ahead and looked at the Appellant's Opening Brief, which is available online, to find out where Mr. Google was wrong in this regard. And I couldn't even find the word "easy" in the brief at all, much less an actual citation to record evidence. The best I could find in the entire brief was the following sentence: "The official records of the character of a Veteran's military discharge are an official public record or purported official public document, which was available to the general public and known to Respondents." But there's not a citation, or reference to the record, or even anything at all to support this assertion.

I guess it's at least theoretically possible that Mr. Collins at some point filled out an authorization form or something like that and sent it to Ms. Waters that authorized her to pull his DD-214, but if so, I don't see any reference to it anywhere. Or maybe, at least theoretically, there's an argument that Ms. Waters could use her pull as a member of Congress to get the Navy to give her a copy of his DD-214. But if it's illegal for members of the public to pull someone else's DD-214, that's presumably equally true for Ms. Waters as well, particularly if the effort to do so is to assist her reelection efforts! And while California law allows public officials in their official capacities to pull California public records, that wouldn't apply to federal (Navy) records, and a pull presumably wouldn't be in Ms. Waters' official capacity either.

So, again, my question is simply this: Is it really "easy" to verify the DD-214 of someone else? If so, I'd like to learn how. 'Cause that seems a fairly central point of the opinion.

I've got subsidiary questions about the opinion as well; for example, I'm not nearly as confident as Justice Wiley is that calling a less-than-honorable discharge a "dishonorable" discharge isn't a type of nonactionable "technical" misstatement (e.g., like calling someone "convicted" or "guilty" when they actually weren't found guilty at trial), and I'm also not certain that, even with inferences viewed in favor of Mr. Collins, the alleged willful blindness here would satisfy the clear and convincing evidence test such that it would "command the unhesitating assent of every reasonable mind."

But, for now, I'll just stick to the DD-214 thing. Personally, I don't think Mr. Collin's DD-214 was a fake. I think he was, in fact, given a general -- not honorable, but not dishonorable -- discharge. But I think that (1) every reasonable person would fully understand why Ms. Waters might well have entirely reasonably thought that Mr. Collins couldn't be trusted when he said that the DD-214 that he posted on Facebook was accurate, and might instead be altered, and (2) am not confident, based on what I've read both inside and outside the opinion, that it would actually have been super easy for Ms. Waters to check whether the DD-214 was accurate.

So I'd love to learn more. Either (preferably) inside the opinion or outside of it.

Clifton Capital Group LLC v. Sharp (9th Cir. - May 9, 2023)

Imagine that you've given a $2 million loan to your friend, Peter, but then he doesn't repay it and files for bankruptcy protection. Peter's got a business, so in the bankruptcy proceedings, Peter promises that he'll eventually pay all of his creditors 100% of what he owes each of them, plus interest, by putting a lien on his business and paying a certain amount of the profits from that business as the money rolls in. If all goes as planned, that should result in you getting your money back.

There have been a few hiccups in the road since then, however. During the heavy COVID-19 years, he didn't pay the amount he promised to pay. Moreover, you're worried. Sure, he'll have enough money to pay you off if his business does as well as expected. But if it makes less money, under the plan, it'll take a very long time for you to get paid. Plus, God forbid, if the business starts losing money, you might not get paid back at all. The plan is good, but like the saying goes, no plan survives contact with the enemy.

One day, you hear that Peter's planning on spending $1 million to go on a round-the-world cruise. You think that's a waste of money and not permitted under the bankruptcy plan. So you object, saying that he shouldn't be allowed to spend his money that way -- money that would otherwise eventually go to you and the other creditors. Peter tells you to shut up because, under the plan, you're going to get paid all that you are owed, so what do you care if he blows $1 million. You respond that you're not nearly as confident as Peter that the plan will inexorably succeed, so would like the $1 million that's sitting around to go to his creditors rather than be wasted, especially since that $1 million might make the difference between full and partial repayment in the event the business starts not throwing off the profits that were originally anticipated.

Do you have Article III standing as a creditor to object to Peter's spending of the $1 million? Do you have sufficient injury in fact?

The Ninth Circuit says: No. Objection dismissed.

I've simplified the facts, but that's the essential basis for the Ninth Circuit's holding. The actual case involves Roscoe's House of Chicken & Waffles in Los Angeles -- a fairly famous eatery.

You can see the arguments both ways on the standing issue. But it's a fairly strict interpretation of injury in fact, I think. If I'm in this setting, I definitely feel aggrieved here, and not just hypothetically or as a matter of speculation. To me, just because you say you'll eventually pay me and have a plan to do so doesn't necessarily make it so. I can still legitimately freak out if you start dissipating your equity.

Which is why, parenthetically, creditors demand an equity "cushion" when they loan you money, and insist that you keep it there. Otherwise, they up the rates.

Campbell v. Kinney (Cal. Ct. App. - May 5, 2023)

Justice Streeter ends this opinion with a fairly lengthy footnote justifying his decision to publish this opinion. I've got no qualms with that. The opinion is a 26-page discourse on the wide variety of frivolous appeals and other misconduct that a vexatious litigant and now-disbarred attorney -- Charles Kinney -- engaged in during an extended period of time. It's a sad, but informative, tale. It was worth the read.

My only countervailing thought, however, was that I'm not sure that Mr. Kinney even deserved the effort of a 26-page opinion that explained at length why his latest appeal was rejected and resulted in sanctions. Typically, I think that litigants are entitled to a fair explanation of why they lost. They devoted time and effort -- often, extensive time and effort -- into making arguments that they thought were persuasive. It's common courtesy, at a minimum, to explain in some detail why those arguments were found lacking.

But not here. The plethora of prior frivolous appeals and vexatious litigation, in my mind, waives the right to have the matter fully explained to you. Rather than writing a 26-page opinion, I might have deliberately written an incredibly concise two-page opinion that rejected quite cursorily Mr. Kinney's appellate claims. Novel or not.

Justice Streeter goes the other way, and writes a lengthy opinion. I've got no problem with that, either. The published opinion is for the public, not for Mr. Kinney.

That's good too.

Kennedy v. Warren (9th Cir. - May 4, 2023)

Public officials have a First Amendment right to say what they feel. So if Elizabeth Warren wants to write a letter to Amazon asking it not to promote a conspiracy book by Robert F. Kennedy Jr. about COVID-19, she can do so. Her letter doesn't constitute illegal and unconstitutional governmental coercion.

I agree with Judge Watford's opinion -- this isn't even a close call, so the district court was correct to deny Mr. Kennedy's request for a preliminary injunction. Judge Bennett concurs, and thinks the issue is closer than Judge Watford does. But I'm someone who's generally worried about even informal governmental coercion of free speech, and even I see the stark distinction here between, say, a letter from a prosecutor threatening arrest if a store doesn't stop selling a particular book and, here, a letter from a single senator expressing her opinion about a public issue.

Other cases might be close. This one isn't.

Young v. Midland Funding LLC (Cal. Ct. App. - May 3, 2023)

There have been slim pickings thus far this week in the Ninth Circuit and the California appellate courts. Maybe later in the week we'll see some blockbusters.

Meanwhile, I did have at least a brief reaction to this opinion from earlier today, even if it's only a reaction to the underlying facts.

It's about a woman who wakes up one day to her employer telling her that her wages are about to be garnished for a $8,500+ judgment that she's never even heard about before. She comes to eventually discover that around a decade earlier, a debt collector had filed suit and obtained a default judgment against her in this amount. She contacted the company and told them that she'd never heard of this lawsuit before, and certainly had never been served with it, but they told her to pound sand.

Everyone agrees that she was never personally served. But the debt collector says that a process server back in the day served someone at one of her old addresses listed on its files -- a place where she didn't live, but where her brother, stepfather and mother lived -- and that the person served was "John Doe, a white male approx. 30–35 years of age 5’6”–5’8” in height weighing 140–160 lbs with black hair,” who was “a competent member of the household . . . at the dwelling house or usual place of abode of [Young].” So the debt collector says that the substitute service, and hence the default judgment, is valid.

To be honest, I'm super suspicious. I mean, can you even think of a more generic description for the guy you allegedly served? Basically: white guy, 30s, average height, average weight, black hair. I'm sure that describes a lot of people. But at the same time, way too many. I'd definitely want to know more before I concluded that service was valid; in particular, what the brother looked like. 'Cause it sure ain't the mom or stepdad, and I'm worried that someone might have just popped in a general description.

In any event, the question is whether there was actual service, and everyone at the address denies that they ever got served, so there's at least a question of fact.

But the debt collector insists upon collection, and when it doesn't relent, the woman sues, claiming unfair debt collection. The debt collector then files an anti-SLAPP motion, which it wins, and then seeks over $78,000 (!) in attorney's fees.

What if this were you? Can you imagine waking up one day to find out that someone's trying to garnish your wages for a lawsuit you've never heard about before? And then, when you challenge it, you end up owing potentially another $75,000+ on top of the alleged debt?

I mean, what if she's right that she was never served? It is really right that she gets pounded like this?

Fortunately, the Court of Appeal largely reverses. As well as awards costs to the woman on appeal.

I just keep going back to the fact that this woman -- Kacie Young -- could be any of us. Maybe, of course, she owed the debt, and was actually served, and knew about the judgment the whole time.

But it's also eminently plausible to me that she totally didn't.

Upper Skagit Indian Tribe v. Sauk-Suiattle Indian Tribe (9th Cir. - May 1, 2023)

It's fascinating that, in 2023, to figure out who gets to take some salmon from a given river in Washington, we have to try to figure out as best we can the particular places that a very tiny group of Native American with no written history occasionally went to go fishing back in the early 1800s.

Or, more accurately, what a particular federal judge thought a half-century ago about the report of a particular anthropologist (Dr. Barbara Lane) who tried to figure out even earlier than that where that tiny group occasionally fished approximately two centuries ago.

The Ninth Circuit concludes today that members of the Sauk-Suiattle Indian tribe occasionally fished on various upper tributaries of the Skagit River, but not on the actual Skagit River itself. As a result, pursuant to the Treaty of Point Elliot in 1855, members of this tribe only get to take the salmon that actually make it up the river that far, without being caught by members of the Upper Skagit tribe or the Swinomish Indian Tribal Community -- who have the right under that same treaty to take salmon from Skagit River itself.

I also thought it was especially sad that the relevant tribes couldn't negotiate a resolution of this dispute on their own, rather than wasting what I strongly suspect is precious and far-from-prevalent money on federal litigation amongst the parties.

Optional Capital v. DAS Corp. (9th Cir. - April 28, 2023)

It wasn't a very good end of the week -- or end of the month -- for appellant's counsel in this case, as they (1) see their appeal get dismissed with a (rare) summary affirmance by the Ninth Circuit, plus (2) receive an order to show cause why they shouldn't be sanctioned for a frivolous appeal. Which, I'll tell you right now, they're almost certainly going to be.

You can't lose much worse than this. Particularly when, as here, all this happens in a published opinion.

There's a lesson here as well. When the Ninth Circuit tells you in a prior appeal that your prior legal maneuvers have already gone "too far," and when the district court subsequently lets you know that your continuing conduct in fighting a prior decision "may be subject to the imposition of sanctions for unreasonably and vexatiously multiplying these proceedings," maybe take that stuff seriously.

Because -- in my experience, anyway -- federal judges rarely bluff.

People v. Bocanegra (Cal. Ct. App. - April 28, 2023)

The underlying facts in this opinion are like a made-for-TV movie. Or a reality show.

"Defendant Alex Andy Bocanegra and Vernon R. were very close friends for decades. However, one Christmas, defendant, who was married, slept with Vernon R.’s girlfriend. The next year, Vernon R., by his account, slept with defendant’s wife, or, by her account, forcefully tried to. In either case, by this point, the friendship between defendant and Vernon R. was “dead.” Rather than allowing this saga to end, on the night of January 12, 2020, defendant drove from his home in San Jose to Vernon R.’s home in Manteca armed with three firearms including an AR-15 style rifle. Defendant broke a front window and fired shots into the house as Vernon R. scrambled through the house and dove out a bedroom window to get away."

That's a fairly disastrous way for a 20-year friendship to end, don't you think?

Chicken Ranch Rancheria v. California (9th Cir. - April 25, 2023)

I was blown away by today's Ninth Circuit opinion by Judge Bress.

It is an amazingly well-written opinion. Seriously: Perfect. It's a super-complicated topic; something that's facially just about attorney's fees, but the underlying issues involve the Erie doctrine and complex federal jurisdictional issues that sometimes bedevil even the best of us.

But here's the thing: Judge Bress not only analyzes the issues entirely correctly, but also writes an opinion that's concise and on point and just amazing. Beautiful, even. 

Really, really well done.

The good thing about this one is that it's a straightforward and (relatively) non-political fight, even though it's about whether a particular Indian tribe gets fees from California for not negotiating in good faith about a gambling compact. That helps. Even if you're a moderately political judge, with perhaps strong feelings on one particular side of the left-right spectrum, when it's a case like this one, where everyone's just trying to get the decision right, there's less of an incentive to manipulate doctrine or push things in one direction or another. In many instances, including here, that's where judges can really shine. And this opinion is a great example of that.

Not that judges can't potentially write "political" opinions that are also really well done; maybe even, at times, beautiful ones. It's just that it's less common.

Regardless, this is a fantastic opinion. I'm affirmatively jealous.

Murphy Co. v. Biden (9th Cir. - April 24, 2023)

You could be easily excused if you didn't feel like reading 47 single-spaced pages of fairly dense legal prose about the intersection of the Antiquities Act, passed in 1906, and the Coos Bay Wagon Road Grant Lands Act, passed in 191937, as applied to Proclamation 9564, issued by President Obama in 2017, that expanded the size of the Cascade-Siskkiyou National Monument and hence restricted preexisting timber logging in the newly designated and (to a degree) adjacent areas.

Heck, even the single sentence that I just wrote takes a lot to get through.

But it's pro-logging advocates on one side against anti-logging advocates on another. It's also a split opinion in the Ninth Circuit, with Judge McKeown writing the majority opinion -- coming out in favor of the the pro-Proclamation and anti-logging side -- with Judge Tallman dissenting (on the other side).

But even if you don't read the entire thing, here were my two favorite parts of the respective opinions:

(1) In the dissent, some fancy, highfautin language from Judge Tallman: "Proclamations and executive orders of this reach are often responsive to criticisms by advocates that Congress is too formalistic and inflexible in performing its legislative function as originally envisioned by the Framers in today’s dynamic world. The legislative process can sometimes be slow and frustrating, but the procedural strictures enshrined in our Constitution are unyielding because they exist to maintain our Republic’s status as a government of laws and not of men."

(2) In the majority opinion, the sly little joke from Judge McKeown: "Admittedly, the validity of the Proclamation—an Antiquities Act order that implicates the O&C Act—presents a statutory thicket. But, ultimately, Murphy’s claim of irreconcilability misses the forest for the trees." 

Ho ho ho. I get it.

People v. Wilson (Cal. Ct. App. - April 21, 2023)

This is a darn good opinion by Judge Langhorne (sitting by designation from Napa County). Well done.

Kimiko Wilson gets convicted of murder and sentenced to life in prison. He might have been the actual shooter, or, perhaps, a different guy named Rauls might have been the shooter and Wilson merely guilty as a major participant aider and abettor; the prosecution argued both theories at trial. What we know is that the jury (1) found Wilson guilty of murder, and (2) was hung -- and hence didn't reach a verdict -- on the personal use enhancement. Which pretty much by definition means that everyone on the jury thought that Wilson was guilty, but some of 'em thought he was the actual shooter and some of 'em didn't. But that didn't matter given aider and abettor liability at the time.

Fast forward to the present day. Now it does matter. Because people who (in situations like this) are not the actual shooter can file a petition to be potentially resentenced.

So Mr. Wilson files precisely such a petition. But the trial court says, sorry, you were the actual shooter, beyond a reasonable doubt, so you're not eligible for relief.

At which point Mr. Wilson's lawyer says: "Hold on. Clearly the jury didn't think that, because they were hung on the personal use enhancement. You can't find something true beyond a reasonable doubt that conflicts with what the jury found. Precedent."

But Judge Langhorne is right. It'd be one thing if the jury found the personal use enhancement not true. A judge in a subsequent resentencing petition couldn't disagree and conclude otherwise. But that's not what the jury here found. It instead found nothing. It was hung. Some thought one way, some another.

That's not issue preclusion. A term that Judge Langhorne doesn't apply, but is essentially the relevant doctrine. When the jury doesn't decide something, then there's no binding finding, so the court can decide on its own.

Which is precisely what the trial judge did here. She reviewed the evidence and concluded, beyond a reasonable doubt, that Mr. Wilson was the actual shooter. End of story. As long as that finding has some substantial evidence behind it -- and it clearly does -- no reversal on appeal. No resentencing.

Totally right.

What struck me most about the case, however, was that, here, the trial judge on the resentencing petition was the original judge at Mr. Wilson's trial. Which, of course, makes sense. She was already at the trial and heard all the witnesses testify, and probably has a super good recollection of the thing. She's in a great position to decide whether Mr. Wilson was, in fact, the actual shooter. And her findings about credibility and the like are, quite rightly, given tons of deference on appeal.

That's great when the original trial judge is still around. But what do you do when the original judge has retired, or died, or otherwise unavailable? That's a toughie. Because, at that point, its not enough for the judge to merely review the trial transcript and the like. Sure, that'll set for the various evidence as well as the competing positions of the parties, and sometimes that'll perhaps be enough; e.g., if everyone at the trial agreed on what happened and the only issue was one of, say, mistaken identity.

But in cases like this one, that wasn't the fight. There was some testimony at trial that Wilson was the shooter, and contrary testimony that Rauls was the shooter. Simply reading the transcript doesn't enable a judge to decide who's telling the truth, or which side is right. For that, you'll need live evidence and live witnesses. Some of whom, in the interim, may have died, become unavailable, forgotten stuff, etc.

What do you do then? The alternatives there are a trial on the papers (totally lame) or a trial based upon the tiny smidgeon of live evidence still available (also totally lame).

In short, how are we supposed to get accurate findings when the original trial judge isn't available, or (God forbid) has largely forgotten the whole thing?

Seems tough.

Not at issue here, of course. Happily, here, the trial judge is still alive.

Still. Other cases: Not so easy. At all.

Air 7 LLC v. County of Ventura (Cal. Ct. App. - April 19, 2023)

Some opinions seem totally right to me. Other opinions seem demonstrably wrong. And other opinions, to paraphrase C+C Music Factory (and to horribly date me), "make you go hmmmm. . . ."

Today's opinion from the Court of Appeal is one of those last types.

Here are the underlying facts. Peter Koral lives in California, and he's rich. Super rich. Like, literally, G5 rich. (For yet another pop culture reference -- this time from the somewhat-modern here -- here's a classic G5 scene from Tropic Thunder.) He's got a Gulfstream G-550 that he bases in Camarillo, California.

But like most of us, Mr. Koral doesn't like to pay taxes. But if you've got a $45 million aircraft parked in California, you've got to pay taxes on it.

So on December 28, 2016, Mr. Koral flew the plane to Oregon, and kept it there while he put it up for sale.

Ventura County, however, said that he still owned the plane (through the underlying trust and LLC), so taxed him on it; roughly a quarter million dollars worth. Mr. Koral sued, claiming that's not okay. He lost in the trial court at a bench trial, and then files an appeal.

The Court of Appeal agrees with Mr. Koral, and reverses the judgment, instructing the trial court to find in favor of Mr. Koral and order Ventura County to refund the $250,000 in taxes.

There's a lot in favor of how the opinion comes out. Justice Baltodano explains at length how California is only able to tax property located within its borders, and here, the plane was undeniably outside of the state during 2017 and beyond. Hence the Court of Appeal's ruling that, under both the relevant statutes as well as the Due Process Clause, it was impermissible for a California municipality to tax the aircraft once it was moved to Oregon.

So, as I said, there's a lot about the opinion that I find persuasive, and nothing that I think is clearly and indisputably wrong. Or even that it close but that I definitely think is wrong.

Nonetheless, here are the two questions that still linger in my mind:

(1) Justice Baltodano says that it doesn't matter that the owner was still in California, that Oregon never taxed the property (because it was only "temporarily" there, abeit for a long time until it eventually sold), or that the property never changed its situs while owned by Mr. Koral since it was only temporarily in the other locations and hence never acquired the situs of another state (and hence was never taxed). The Court of Appeal says that the Due Process Clause nonetheless prohibits taxation and jurisdiction even in such a setting.

Really?

Take the one area I know a great deal about; personal jurisdiction and residency. Which is all about the Due Process Clause. For these purposes, you indisputably maintain your former residence -- even when you move -- until you permanently acquire another situs. So if I permanently reside in, say, California, and only temporarily relocate to Texas (say, for a work assignment, or on military orders), I remain a California resident unless and until I obtain a new permanent residence. Even though I'm no longer located here. California retains the ability, under the Due Process Clause and otherwise, to subject me to jurisdiction here, via taxation and otherwise (e.g., to assert personal jurisdiction over me).

Ventura County argues that this same rule should apply in the present case, but the Court of Appeal says that the Due Process Clause compels otherwise. But are the two situations really different? At least for purposes of the Constitution, I'd think not; jurisdiction to tax and to do those other things seems to me to be synonymous. (Put to a different side the statutory point; California might choose not to tax unless the property's physically located here, but I'm talking about the Due Process argument.)

Plus, even in the taxation realm, does the Due Process Clause really operate that way? Here's one thing I know for sure: the United States has the power to -- and actively does -- imposes taxes on residents regardless of where they're located and regardless of whether that income is earned in other countries. How's that consistent with today's interpretation of the Due Process Clause? 

So, in the end, I'm just left to wonder if the scope of the Due Process Clause is really what the Court of Appeal today thinks it is. I get the argument. I just wonder if it's right.

(2) On a totally separate front, the Court of Appeal expressly says that since "the facts are undisputed" it reviews de novo, and on the basis of its holding, it reverses and instructs the trial court to find in favor of Mr. Koral and to order Ventura County to refund the money.

Is that really right too?

I agree that lots of the facts are undisputed; e.g., when the plane left, that Oregon didn't tax it, etc. But the only thing the trial court held was that, in its view, taxes were owed regardless of Mr. Koral's intent because (in its view) taxes are owed because no new situs for the aircraft was established.

The Court of Appeal says that's wrong as a legal matter, and okay, let's assume for present purposes that's right. Does that really mean -- as the Court of Appeal holds -- that Mr. Koral automatically wins because the facts are entirely undisputed?

It seems to me that there's at least a colorable argument -- indeed, one that, as a judge, I might factually find persuasive -- that Mr. Koral did not in fact intend to permanently relocate the plane outside of California. The Court of Appeal takes at his word Mr. Koral's testimony -- which might, perhaps, be 100% true -- that once he put the plane up for sale in 2016 and shipped it off to Oregon, he expected that the plane would be there forever and "never wanted anything to do with it."

But the trial court was surely not required to believe Mr. Koral's testimony. And there's at least some reason to think that he might have shipped the plane off to Oregon for perhaps other purposes, right? Do you think, for example, that it's just happenstance that he shipped the plane to a place outside California on December 28, 2016 -- just days before a new tax year started (and hence taxes would be due on planes located in California)? Were a credibility call to be made, surely it'd be permissible for the trial court to find, if it thought it true, that Mr. Koral didn't intend to dispossess himself of the plane on that date, and instead did it primarily for tax reasons, and intended to take the plane back if it didn't sell. (To be clear: I'm not saying it'd have to find that, but surely it could, right?)

Now, as it turns out, the trial court wasn't required to make any finding at all in that regard, because in its view, Mr. Koral's intent was irrelevant, since the plane never acquired a new situs in Oregon. But once the Court of Appeal says that latter view is legally erroneous, isn't the proper remedy to remand the case back down for the trial court to apply the proper law, at which point a finding as to Mr. Koral's intent now becomes relevant? Is the Court of Appeal really right that the relevant facts are undisputed even under the different test applied by the Court of Appeal? That reversal, not remand, is required?

Those are the questions that pop through my mind as I read this one. A case in which, perhaps, the right result is reached. But I wonder if the reasoning, or the process employed, really establishes what the Court of Appeal thinks it does.

Palmer v. City of Anaheim (Cal. Ct. App. - April 17, 2023)

I love the way this opinion is written, which is not surprising once I reached the end of the opinion and saw that it's author was Justice Bedsworth. What I also loved about it was that it highlights a creative way to potentially circumvent the requirements of Proposition 218 -- the amendment to the California Constitution that requires voters to vote to approve any taxes imposed by local governments -- that I hadn't at all thought about previously.

(That's not intended to be a normative statement, by the way; I'm not saying that I love or hate the idea of getting around Prop. 218, just that it's always interesting to think about ways that people might try to do so and whether they'd legally succeed or fail.)

The basic scoop is that voters have to approve taxes, but not fees. With electricity, one of the things that the electricity company pays for is using public right of ways: transmission lines above sidewalks, power lines under streets, etc. So the City definitely gets to charge the electricity company (and gas company, cable company, internet provider, etc. etc.) fees for that access.

But, of course, the company just turns around and charges its customers those same costs. And with most of these entities, it's not like you have a choice whether to pay. What are you going to do, after all: live without electricity, or water, or sewage, or (gasp!) internet at your home?

So if a city wants to raise taxes without voter approval notwithstanding Proposition 218, why not just jack up the rates we charge the various service providers for public access? Regardless of how high a city sets those charges, it's not like SDG&E (or PG&E, or whomever) is going to say: "Screw it, we're going to get of the monopoly market in that city and no longer provide power." Nope; they're just going to raise their own rates on customers in return. And we're going to pay it. Every single time.

So the City gets whatever money it wants and the public pays it. Without voter approval. Neat, huh?

Now, in the present case, that's not a problem -- nor one that Justice Bedsworth is required to address -- because in Anaheim, there are already parts of that city's particular charter that are designed to prevent various types of electricity rate increases. But for other cities, or for situations (potentially like here) where those provisions don't apply, that's an interesting potential way around Proposition 218, no?

Of course, even if that's true, that doesn't necessarily mean that Proposition 218 is meaningless. Cities would still have to get voter approval if they wanted to (effectively) raise taxes in other ways. Moreover, there might well be reasons why cities would be somewhat more unlikely to raise, say, electricity rates (via public access charges) as a means of obtaining revenue than, say, imposing taxes on high-income earners, so we might be less worried about this particular "loophole" than some others.

Still, it'd have been a much harder sell for Proposition 218 if the pitch was: "Good news: passage of this law means that we'll have a harder time taxing the rich (since voters might strike that down), but fear not, cities can still totally soak the rest of us -- anyone who uses water or electricity, anyway -- at their total leisure." Which, effectively, might turn out to be really how the thing works. Though you might have to replace "rich" with "businesses, landlords, etc." to actually capture all the different ways that contemporary taxes get imposed, with or without voter approval.

Anyway: A neat little thought experiment about how cities might be able to get around Proposition 218 if they feel like it.

Boydston v. Padilla (Cal. Ct. App. - April 12, 2023)

I'm all for tilting at windmills if you think it has a point, particularly with respect to elections procedures that you believe to be unconstitutional. So if you think (as the voters do here) that it should be a violation of the Constitution for a state to only allow registered members of a party to vote in that party's primary, then by all means, feel free to make that argument.

But the Supreme Court held back in 1990 that it was unconstitutional for states (like California) to require an open primary when that's not what the party wants. And that decision wasn't even especially close, with only two dissenting votes. (Justices Ginsberg and Stevens, neither of whom, I might add, remain either on the Court or breathing).

Given that the Supreme Court has indisputably said that primaries have to be closed if that's what the party wants, the plaintiff's argument here that it's unconstitutional for a state to allow primaries to be closed is a surefire loser. Even if the plaintiff's request (as here) only that they be allowed to vote for "expressive" purposes and do not ask that their votes be counted. No way that's gonna win; not even back in 1990, and certainly not with the contemporary composition of either the federal or California judiciary.

So tilt away, my San Diego friends; just know that there's a 0% chance of winning this one. The best that you could possibly hope for anyway is to somehow prevail in state court (which ain't gonna happen) and then have that decision summarily reversed by the Supreme Court in a blistering opinion.

But as it is, as expected, you lose -- consistently -- long before that, including but not limited to in today's published opinion by the Court of Appeal.

People v. Thai (Cal. Ct. App. - April 11, 2023)

I was going to mention this opinion regardless of the merits, if only because of the offhandedly humorous way that Justice O'Leary introduces the facts. She says:

In June 1997, 12-year-old John Doe walked from his father’s house to the liquor store across the street where 39-year-old Thai worked. . . . As Doe perused the candy, Thai asked him how old he was. When Doe said 12 years old, Thai said he looked big for his age and asked him if he worked out. Not so subtly, Thai asked Doe, “‘Do you jack off?’” Thai gave Doe a Playboy magazine and directed him to the empty office in the back of the store.

In the office, Doe sat down in a chair. After Thai entered the office, he asked Doe to look at the magazine and pull down his pants. When Doe hesitated, Thai pulled down Doe’s pants and underwear. Thai knelt on the floor and masturbated Doe until he ejaculated. Doe got dressed and fled. Later that day, Doe felt ill from what happened and told his mother, who called the sheriff’s department."

Obviously, a terrible offense, and you totally feel bad for Doe. I nonetheless had to laugh at the "Not so subtly" part. True that.

On the merits, the Court of Appeal reverses the trial court, which kept Mr. Thai on the sex registry on the ground that (as the statute requires) "community safety would be significantly enhanced by requiring continuing registration." Mr. Thai spent three years in prison, is now 65 years old, has been on the registry for 23 years, and has never reoffended. Justice O'Leary says there's insufficient evidence to support a finding that "community safety would be significantly enhanced" if this now-elderly man was kept on the registry. Not that there isn't some risk that he'd reoffend, just like there's some risk that any of us would. Just not enough to justify continuing registration after 23 blameless years.

"Not so subtly." Funny.

Nijmeddin v. Superior Court (Cal. Ct. App. - April 5, 2023)

On the one hand, Mr. Nijmeddin was convicted of murder (including backing his truck up over the victim) and sentenced to life in prison, has a criminal history that includes assaults and burglaries, and while in prison has committed several serious rules violations, including violations for fighting and serious threats. He's also only been in prison for the murder conviction for seven years thus far.

On the other hand, Mr. Nijmeddin now has advanced pancreatic cancer, has only 3 to 6 months to live, is now bound to a wheelchair, can't walk, stays in his bed 22 hours a day, can't take care of himself, is 65 years old, and will soon need 24-hour care. He's also got a brother who's an attorney and judge pro tem in Fresno who has not always gotten along with him (e.g., previously evicted him), but who's nonetheless willing to take care of Mr. Nijmeddin during his final days, who's view is that “I think that in the end of his life, [] [Nijmeddin] is looking to mend fences, not to create more problems.” The brother's willing to be his caregiver, has started to arrange hospice services, and although "his house has a safe with guns in it, [] he has already arranged for it to be moved to his sister’s house, which is about 10 miles away."

The trial court refused to grant Mr. Nijmeddin compassionate release, holding that he was still a serious danger to society. On appeal, the California AG's Office confessed error, and the Court of Appeal agrees, reversing and ordering the trial court to order Mr. Nijmeddin's release forthwith.

I suspect that at least most of the fighting that Mr. Nijmeddin did in prison was long before he had terminal cancer and was unable to walk and stuck in a wheelchair.

Soni v. Cartograph (Cal. Ct. App. - April 5, 2023)

Lawyers fighting clients. About virtually nothing. Never a good look, and usually someone comes out very much on the short end of the stick. Interestingly, here, at various times, both sides were on the short end. But in the end, it's the lawyer who ends up very much wishing that the thing had been resolved in a more informal matter.

It's a totally tiny underlying dispute. Client T hires Attorney S to do some minor legal work. Seriously minor. As of October 2013, S says that the total fees due are $7,211. T doesn't want to pay for some of that work, which he says was unauthorized, so ends up paying $3,531.

So there's a difference of three grand and change. No big deal, right? Just write it off, or resolve it, or whatever.

But no. Client T files for fee arbitration, disputing the remaining $3,720 that the parties can't agree on. Again: Just resolve the thing. But no. The matter gets arbitrated. Ultimately resulting in an award to the attorney (S) of a whopping . . . $2.50.

But S isn't happy with that award. So instead of just moving on, files a lawsuit for the $3,580 in fees, plus twenty some thousand in "collection expenses" (presumably the fees expended in arbitration and the like). Client T responds by saying that the lawsuit -- which was filed 33 days after the arbitration award -- was too late, and wants the $2.50 award confirmed. But the trial court says that the suit was filed timely and awards the attorney $2,890 of the $3,580 requested.

But then there's the matter of fees. Attorney S then asks for over a quarter million dollars (!) in fees for the $2,890 award. The trial court slices that down a ton, to roughly $80,000. Still, a ton of money for a $3,000 award.

At which point Client T appeals, and wins, with the Court of Appeal holding that the lawsuit was indeed filed too late.

So now, on remand, everyone moves for a (relatively) absurd amount of fees. Attorney S now asks for over half a million ($543,365) in fees for this $3,000 dispute, claiming that he's the prevailing party given the $2.50 arbitration award he won. Whereas Client T in turn asks for over a third of a million dollars in fees ($339,603) for this $3,000 dispute, claiming that S didn't do better than the arbitration award, hence is liable for fees. The trial court agrees with T, and awards nearly everything requested; $328,166.50 in fees.

Again, over a $3,000 attorney-client fee dispute.

Today, the Court of Appeal affirms. As well as awards T costs on appeal. Which means yet additional fees to be awarded on remand.

I'm going to say it one last time: All as a result of a $3,000 fee dispute.

I think we can all agree that the world would have been better off had this minor dispute been resolved informally long ago.

People v. Jones (Cal. Ct. App. - April 4, 2023)

This seems to me to be largely a "forgot to put it on the record" problem.

The judge dismissed the jury after it rendered its guilty verdict, but forgot that the jury hadn't yet decided whether the defendant had been previously convicted of a serious felony, which was one of the charged enhancements. Before the jury left the courthouse, the judge had the jury call them back in. But the jury didn't actually come back into the courtroom until four hours or so after they'd been discharged, and the judge failed to put on the record what the jury was doing in the meantime. As a result, it was unclear from the record whether they'd discussed the case with outsiders, had talked to the lawyers, etc.

Under such circumstances, yeah, you gotta reverse the subsequent jury's finding that the defendant had a prior felony. You can't reassemble a jury unless you're totally sure they remained under the judge's control the whole time.

That said, all this means is that a new jury's going to be empaneled to decide whether the defendant had previously been convicted. Which I'm certain he has been. So it's going to be the quickest retrial in the history of California jurisprudence.

As well as perhaps the most boring jury service ever.

Bolden-Hardge v. Office of Cal. State Controller (9th Cir. - April 3, 2023)

The Ninth Circuit only publishes one opinion today, and it reverses the dismissal of a claim by a Jehovah's Witness that requiring her to take a sworn oath as a condition of state employment violates her right to free exercise of religion as well as Title VII and the California Fair Employment and Housing Act.

Judge Friedland's opinion concisely describes the relevant dispute: "The California Constitution requires all public employees, except those 'as may be by law exempted,' to swear or affirm to 'support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic' and to 'bear true faith and allegiance' to those constitutions. Cal. Const. art. XX, § 3. Bolden-Hardge, a devout Jehovah’s Witness, believes that her faith precludes her from 'swearing primary allegiance to any human government' over 'the Kingdom of God' or pledging to engage in military activity. She objects to California’s loyalty oath because she believes that it would require her to pledge primary allegiance to the federal and state governments and to affirm her willingness to take up arms to defend them, both of which she says would violate her religious beliefs."

Bolden-Hardge offered a substitute oath. She was happy to say: "I, Brianna Bolden-Hardge, vow to uphold the Constitutions of the United States and of the State of California while working in my role as an employee of the State Controller’s Office. I will be honest and fair in my dealings and neither dishonor the Office by word nor deed. By signing this oath, I understand that I shall not be required to bear arms, engage in violence, nor to participate in political or military affairs. Additionally, I understand that I am not giving up my right to freely exercise my religion, nor am I denouncing my religion by accepting this position."

California wasn't cool with that. So Bolden-Hardge didn't get the job. Then she sues, and California defends the suit on the grounds that the oath requirement is just fine, and that it's okay to make people say that when and if their religious requirements conflict with their employment requirements, the latter rules.

I can see the arguments on both sides. Ultimately the Ninth Circuit says that it's not okay to dismiss the thing at the pleading stage, and that seems kinda right to me. We'll have to figure out of the facts.

Nonetheless, here's my take:

The oath requirement comes from the California Constitution, which requires most state employees -- and there are a TON of them -- to take that oath. Here's what Section 3 of Article XX says:

"Members of the Legislature, and all public officers and employees, executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation . . ."

The following is my dominant, nonlegal reaction:

Seriously? Come on. Who cares? Why put that thing in there?

It's not like an "oath" is really going to change people's behavior, or "screen out" bad people. It doesn't really screen out anyone, and to the degree it does, its only effect is on people with conscience like Ms. Bolden-Hardge. The thing gets passed in the 1950s or whatever when there's McCarthyism and we're all super paranoid about communism taking over the American government and the like. [POSTSCRIPT - That might actually have been the amendment, not the original oath. Still. It was back in the old days, for sure.] It doesn't work -- or really accomplish anything, actually. Just delete the thing. It's stupid.

Do I really care if people like the President are required to take an oath? Not really. It's symbolic, and at some high level, maybe there's a role for that. But every state employee?! Seriously? Do you really feel better knowing that your communications professor at UC Berkeley was willing to sign a stupid oath as a condition of teaching? Or, as here, someone working in the bowels of the Comptroller's Office?

Courts can't just totally ignore a state constitutional command, of course. My dominant reaction to this case was nonetheless that it's just silly that we have disputes like this over an oath that serves utterly no purpose in the first place. All this money and attorney's fees wasted by the state on something that accomplishes essentially -- probably, literally -- nothing.

I can't believe we don't have better things to do with our time.

Anyway, the case gets remanded back to Judge Mendez. We'll see how it goes.

People v. Marquez (Cal. Ct. App. - March 30, 2023)

You have to be a true law geek to find this opinion interesting. Because it comes to a common sense conclusion that everyone in the universe would likely understand is a sensible an eminently just result.

Yet, doctrinally, I think it's probably wrong.

Let's first just set the stage, though. Generally, the prosecution has to prove the elements of an offense. So if, for example, a statute says that it's a crime to steal property "worth over $950," then the prosecution has to prove that fact. Ditto if a statute says that you can't molest someone who's "under 12 years of age" or to steal from a bank that's "insured by the FDIC." It doesn't matter that we all know that pretty much every bank is insured by the FDIC or that a particular child is super young; that state still has to introduce some sort of minimal evidence that establishes that these elements are met. That's unambiguously the law.

So say, to take another example, that a statute says that you get two years in prison if you commit arson of an "inhabited" dwelling. We'll all agree that the prosecution has to introduce evidence that the dwelling was indeed inhabited, right? That's similarly true, I think we'll agree, if the statute instead says that you get one year in prison if you burn an "uninhabited" structure, right?

The point is this: if there's a statute that says that you're guilty if you do X in settings involving Y and Z, the state's required to prove each of X, Y and Z. Regardless of whether these things are positive states of events (e.g., that a building was "inhabited") or negative (e.g., that a building was "uninhabited" or that a victim "was not yet twelve years of age").

In the actual case decided today, the relevant statute (Section 368(d) of the Penal Code) says that you get two, three or four years in prison if you're (a) "not a caretaker" of an elder or dependent adult, but (b) embezzle, steal or do other bad stuff to the property of an elder or dependent adult. In the present case, the prosecution established that Ms. Marquez stole around $100,000 from her 80-year old brother in law, who was living with her. But it never introduced any evidence at all about whether or not Ms. Marquez was her brother-in-law's caretaker. Remember: Ms. Marquez is only guilty under Section 368(d) -- the only statute under which she was charged -- if she was not his caretaker. Given this omission, was Ms. Marquez properly convicted of violating Section 368(d)? Did the evidence at trial establish the elements of the offense?

The Court of Appeal says: Yes.

Justice Moore holds that the part of the statute that says you have to "not" be a caretaker in order to be guilty is only a "charging" qualification that's only a hint to the prosecution as to which statute it might want to select in a given case.  I can't agree, and before today's opinion, I don't think I'd ever read any other case in which a substantive portion of a criminal statute was held be be essentially purely advisory and not an actual element. Section 368(d) couldn't be more straightforward: it says that "A person who is not a caretaker who violates any provision of law proscribing theft [etc.] . . . with respect to the property or personal identifying information of an elder or dependent adult" violates that section and can be punished accordingly. Those first seven words are as meaningful -- and equally as elements -- as any other seven words in the statute. If you're a caretaker, you're not guilty of violating Section 368(d).

Sure, you might be guilty of violating a different statute. Just like you might be guilty of violating a different statute (e.g., embezzlement) if you steal from a competent 40 year old rather than an 80-year old. But that doesn't mean you're guilty under Section 368(d). Similarly, here, if Ms. Marquez was in fact the caretaker for her 80-year old brother-in-law who lived with her -- and for all I know, she in fact might perhaps be -- then she's not guilty of the crime for which she was charged. The state has to prove that stuff, and it undeniably didn't do so here.

I'm sure that Justice Moore is right that the Legislature enacted Section 368 because it wanted to punish elder abuse crimes more severely. But that's not dispositive at all as to the meaning of Section 368(d), which applies only to noncaretakers. Similarly, I'm confident that the Legislature probably wanted to make it easier to convict caretakers who commit elder abuse more than noncaretakers, which is why it also enacted Section 368(e), which punishes caretakers who commit elder abuse. (Justice Moore says that "caretakers [] are subject to increased penalties under section 368(e)," but as far as I can tell, that's not actually true, since the penalties for caretakers and noncaretakers are exactly the same in paragraphs (d) and (e); two, three or four years, with the exact same fines etc.)

But here's the rub: you're not guilty of violating Section 368(d) if you're a caretaker. Just like you're not guilty of violating Section 368(e) if you aren't a caretaker. Just like being a caretaker is an element of guilt under (e), so too is not being a caretaker an element of guilt under (e). Just like it's an element of a particular arson offense that a structure not be inhabited, even if there's a different statute that covers arson of structures that are inhabited. And just like it's an element of Section 368(d) that the theft be from an elder even though there are other statutes that cover thefts from non-elders.

It's not that I don't get the foundational common sense principles that underlie the position that the Court of Appeal takes here. Ms. Marquez is surely guilty of some offense, whether it's 368(d) or (e). If she's a caretaker, it's (e), and if she's not, it's (d). 

But that's not how our system works. You actually gotta be charged with the offense for which you're guilty, and if you're charged with an offense and the state doesn't prove the elements of that offense, we gotta find you not guilty. Even if you totally robbed that bank and we're darn well certain that it's FDIC insured. If the state didn't put on evidence of that insurance, end of story: not guilty.

One I started thinking more deeply about this case, I thought there might perhaps be a way out. Maybe we should invent a doctrine that's somewhat similar to the various doctrines involving lesser included offenses. If, say, a person is charged with X, but there's a bigger crime (Y) of which the facts show that she's guilty, and if X is necessarily a lesser included offense of Y, then maybe should be able to uphold a conviction on X given the proof of Y. Sorta the same way that the Court of Appeal sometimes vacates convictions on greater offenses but reduces the crime (or allows retrial on remand) for a lesser included offense.

You see the analogy, right? Here, Ms. Marquez would be guilty of the "greater" crime (Section 368(e)) if she were in fact her brother-in-law's caretaker, so maybe we're okay with her being convicted of the "lesser" crime?

That's definitely not the way the Court of Appeal goes, though. Moreover, the present case involves at least a couple of complexities in that regard. First, the "greater" crime, as far as I can tell, actually is not in fact "greater". The punishment is instead actually the same. Second, the "lesser" offense here has a slightly higher mens rea, since Section 368(d) (unlike (e)) requires that the defendant know or should know that the victim is an elder or dependent adult, whereas (e) imposes strict liability on that element. Now, the greater mens rea might still constitute a "lesser" offense, since if you have the higher mens rea you necessarily also violate the strict liability offense that requires no such showing. It just gets a tiny bit messy.

Or maybe the Court of Appeal could say something instead that's entirely unique to the particular statute at issue here. Since, as I've said, Sections 368(d) and (e) appear to me, anyway, to impose the exact same punishment on caretakers and noncaretakers, perhaps we could create a rule that just says that in such settings, it's not a fatal variance from the charging document to charge (d) even if the facts might otherwise suggest (e). Particularly since the only difference is a lower mens rea, which the jury necessarily found when it decided to convict.

Or maybe we just bite the bullet and say that the prosecution screwed up and omitted an element and leave it at that. It happens sometimes. We're okay with that. Maybe ditto here.

Otherwise, it seems to me we're in a world of hurt trying to figure out what elements of a statute are "really" elements as opposed to merely "directory" and the like. Imagine you're in a state, for example, where Section 15 says that you get three years in prison if you burn a house "owned by another person" and Section 22 says that you get two years if you burn a house "owned by the defendant himself." Let's say I burn a house and am charged under Section 22 and the prosecution never proves it's mine. Am I still guilty? What if the house is not, in fact, mine? Still guilty there too? Does the answer change if I make Section 15 the "lesser" offense; e.g., if burning your own house gets you two years in prison but burning other people's houses only gets you one? (Maybe the Legislature was super concerned about insurance fraud.) Figuring out stuff like that seems a nightmare.

The fact that a statute imposes a "negative" condition on liability -- e.g., "not inhabited" or "not a caretaker" -- doesn't seem relevant. It's still an element. Or at least always seems to have been until today.

People v. Shkrabak (Cal. Ct. App. - March 28, 2023)

This opinion does not exemplify the type of cooperative and loving family dynamic that you'll see in, say, 1950s television shows:

"On the day of the offense, defendant was angry at his mother, saying she was “evil” and deserved to die. She left the house with defendant’s younger brother, who was 12 or 13 years old at the time. She returned an hour later, and defendant said, “Oh, you’re back. You didn’t kill yourself. Aren’t you strong enough to kill yourself?” She went to the kitchen to call 911. Defendant put her in a chokehold and the two struggled. As they struggled, defendant “body-slammed” his mother through a sliding glass door."

An episode of Leave It To Beaver it ain't.

People v. Myles (Cal. Ct. App. - March 23, 2023)

A mother who lived in a house in Oceanside (down here in San Diego) died, and her son in Los Angeles (Jake) occasionally visited it while the thing was in probate; otherwise, it was vacant. Meanwhile, down in San Diego, there's this homeless guy (Andre Myles) who's got serious mental illness issue that, not at all surprisingly, aren't made any better by the guy smoking meth. 

One day, the homeless guy (Myles) is in the area and, whether due to his mental illness -- he thinks that Jake's house was "given to him by the Archangel Michael" because Myles is "Jesus Christ reincarnated -- or simply because he's cold and hungry, Myles breaks into the vacant house. While he's there, Myles drinks a juice box and eats some ice cream that's in the fridge. Meanwhile, Jake (up in LA) is getting these text messages from the security system installed in the house. So early the next morning, Jake drives down to Oceanside and puts his key in the front door to check out what's up. At which point the doorknob turns and standing there inside the house is Myles.

"Surprised, Jake asks Myles, “[W]ho are you? What are you doing here?” Myles told Jake “he lived there and that it was his house.” Myles “seemed serious [to Jake], . . . he said that he lived there, that was his house.” Jake stepped back from the doorway and called 911. When Jake told Myles, “ ‘this is my house homeboy, you’re going to have to leave,’ ” Myles asked him, “this is your house?” Myles also asked, “Are you Jake?” “There was some back and forth regarding whose house it actually belonged to.” Myles then said he would leave if Jake showed him “some form of identification” so “he could confirm that it is, in fact, Jake.” Jake, who was now inside the house, showed Myles his identification. Upon seeing Jake’s identification, Myles went to gather “his stuff" . . . . [and shortly thereafter] two police officers arrived at the home and arrested Myles."

Okay. This stuff happens. Myles broke in and drank a juice box and ate some ice cream. Let's assume that's burglary. Oh, and a year and a half later, Myles tries to get back in to "his" house and hits a window of the house with a rock -- which doesn't break the window -- and all of this is caught on a Ring system, so Myles is charged with attempted burglary for that as well.

What sentence, you think? For a crazy homeless guy breaking into a vacant house that he thinks is "his" and stealing a juice box and some ice cream?

15 years. That's 14 years for the first burglary ("consisting of the upper term of six years . . . doubled to 12 years due to the strike prior, plus two years for the out-on-bail enhancement") plus another 16 months for the second attempt.

My overall reaction: Doesn't that seem, eh, socially excessive to you? I mean, sure, we want to stop crazy homeless people from going into houses that aren't *actually* theirs and drinking juice boxes and the like. But spending all the money to house them in a prison for 15 years? Is that really the most efficient way to solve this problem? That's really the best we can do? Really?

The Court of Appeal reverses this particular conviction on some hypertechnical instructional grounds. But I suspect that Mr. Myles will just be convicted again on remand. Or, failing that, that he'll just be busted yet again for doing it another time, or for entering someone else's house instead.

Fifteen years in prison seems a really long time. Which, I know, I've said before. But really? That's where we're at these days? That's our solution to the problem?

People v. Villalba (Cal. Ct. App. - March 22, 2023)

Respectfully, I'm not at all sure that this opinion does justice to the reason for the trial court's contrary decision.

I fully understand the equities. Mr. Villalba has been in the United States for 30 years -- since he came here from Mexico when he was 13 years old -- and has a wife and six kids here (two of his, three of hers, and one of theirs). He's been a legal permanent resident since 2014. To deport him to Mexico would surely radically disrupt his life, as well as the lives of his family.

But he has a conviction for domestic violence, to which he pled no contest in 2017. Which makes him subject to mandatory removal. So, pursuant to California law, in 2022 he filed a motion to withdraw his plea, on the theory that he wouldn't have pled guilty if he knew he was subject to being deported as a result.

The prosecution didn't oppose his motion, but the trial court denied it anyway. The Court of Appeal reverses and orders that Mr. Villalba be permitted to withdraw his plea.

I agree with the Court of Appeal that the evidence shows fairly strongly that Mr. Villalba was not given awesome advice by his attorney with regard to the immigration consequences of the plea. His attorney seems to have told him that he might be able to avoid being deported if he retroactively got his sentence reduced, which isn't really true; the guy was basically definitely going to be deported.

On that basis, the Court of Appeal holds that Mr. Villalba gets to withdraw his plea. The Court of Appeal hold that given the bad advice he got from his attorney alongside "the sentencing court’s confusing and contradictory advisement" about the consequences of the plea, Mr. Villalba did not, in fact, know that he would be subject to deportation on the basis of his plea.

Okay. I get it.

But here's the thing: The trial court's advisement was not, in my view, "confusing and contradictory" at all.

The trial court told him he'd be deported. For sure. The only thing that was "conditional" about that was that he'd only be deported if he wasn't a U.S. citizen. Which Mr. Villalba indisputably wasn't. Here's the exact thing that the trial court said at the time when taking his plea:

"I don’t know if this applies to you or not. I don’t need to know. I just need to advise you that if you’re not a citizen of the United States, your plea of no contest will result in your deportation, denial of naturalization, denial of citizenship, denial of reentry into the country.” The court then asked, “Do you understand that?” and defendant replied, “Yes, Your Honor.”"

It's fairly clear to me what the trial court expressly told him. It said: "Look, I don't know if you're a US citizen, and I don't need or want to know; it won't affect my sentence. But what I'm telling you is this: if you're not a citizen, as a result of your plea, you're getting deported. Do you get that?" To which Mr. Villalba said: "Yes."

That's not "confusing and contradictory" to me. It's instead fairly clear.

Now, if the Court of Appeal wanted to, I could see them saying that the contradiction between what Mr. Villalba was told by his lawyer (i.e., that he might not be deported) versus what he was told by the court (i.e., that he would be deported), Mr. Villalba didn't necessarily understand the full consequences of his plea. That I could see. It'd then be a question of fact on remand; what, in fact, did Mr. Villalba think at the time? 

The trial court thought that, whatever Mr. Villalba was told by his attorney, he was definitely told by the court that he'd be deported, so as a factual matter, Mr. Villalba knew -- notwithstanding his denials to the contrary. That seems like a factual determination, as to which we generally give the trial court some deference. It's hard for me to see the Court of Appeal saying that as a matter of law that when your attorney tells you one thing (as here) but the trial court tells you a directly different thing (as here) that you necessarily thought that your lawyer was right and the judge was wrong. It is possible? Sure. But not definite. It's a fact issue. Or so I'd have thought.

So, look, maybe Mr. Villalba should be allowed to stay. Again, I see the equities. And, if it were me, I suspect that, as a factfinder, I might well find that Mr. Villalba would not, in fact, have pled no contest if he knew for sure that he'd be deported. Because he had lots of ties to the US, and might have been willing to roll the dice.

But maybe not. The truth is, he drunkenly punched his wife in a restaurant parking lot, and there were plenty of witnesses. That's almost certainly going to get you convicted regardless. Deportation was thus almost certain however he pled, so he might well have thought that a no context plea at least gives him some favor with the judge and reduces his sentence.

Maybe not, of course. But it's a factual question. One that I could see going either way.

But the Court of Appeal sees it otherwise. I'm just not 100% sure that's right. Or really gives sufficient credence to why the trial court here did what it did, or what the trial court in the underlying case meant when it told Mr. Villalba that his plea meant he'd be deported if he wasn't a U.S. citizen.

In re Marriage of Sullivan (Cal. Ct. App. - March 21, 2023)

Two lawyers are getting divorced in San Diego. Both of them are in the Navy; one on active duty, one in the reserves. They have two children. The resulting divorce could be a lot messier than it is, but the big fight is whether California has jurisdiction to divide the wife's military pension.

Justice Buchanan's opinion says "Yes," and its reasoning appears sound. I particularly liked footnote four, which reads:

"In Tucker, the court ruled that a service member “may both agree California has jurisdiction over nonpension issues and at the same time argue California has no power to divide his or her military pension.” (Tucker, supra, 226 Cal.App.3d at p. 1256.) Although this may be so when the service member is the responding party in a dissolution proceeding, as in Tucker, it is questionable whether a service member who files for dissolution in a California court may simultaneously withhold consent to the court’s exercise of jurisdiction over her military pension. This would be contrary to the usual rule that the plaintiff who chooses the forum impliedly consents to personal jurisdiction in related matters. (Sea Foods, supra, 150 Cal.App.4th at p. 786; Nobel Farms, supra, 106 Cal.App.4th at pp. 658–659.) Moreover, Congress’s concern about forum-shopping does not apply to a service member like Lisa, who is the petitioner and voluntarily chose the forum herself. We need not decide this question, however, because Lisa did not withhold her consent to the court’s jurisdiction over her military pension when she filed her dissolution petition and specifically requested judicial confirmation of her separate property and her interest in any community property."

That sounds right to me too.

A.H. v. Superior Court (Cal. Ct. App. - March 17, 2023)

This is doctrinally merely a case about jurisdiction; in particular, whether California retains jurisdiction over dependency matters when it initially exercises jurisdiction (without objection by another state) even though the other state (here, Texas) says that it might reassert jurisdiction if the parents subsequently move back to that state. The answer is: Yes.

But factually, the case provides an insight into what sometimes happens behind closed doors. Here, in a motel in Buena Park.

The facts are as follows, with a trigger warning that it's about how some parents punished their kids:

"On Monday, August 24, 2020, at about 1:21 a.m., Buena Park police were dispatched to a motel room for a child abuse investigation. The police saw bruising and welts on the boy’s face, as well as on his arms and shoulders. The pattern of bruises indicated he had been hit with the studded side of a belt. The boy said he had fallen off a swing three weeks earlier; he later said he had fallen while running. The boy initially did not want to show his back to police, who eventually saw bruises on his back, legs, and torso. It was later discovered the older girl had multiple bruises on her legs. 

Mother said she had “whooped” her son two nights ago, but nothing had happened that night. Mother said she disciplined her son for being disrespectful. Mother said she was so enraged that while she was hitting the boy with the belt, she wasn’t paying attention to the marks on his body. When asked about the injuries to his face, Mother said she did not know about those injuries, and she was “just seeing that.” Husband told police the boy was playing outside and fell, causing the injuries to his arms and face. The family had been staying at the motel since August 1, 2020. . . .

During his CAST interview, the boy initially stated he sustained the injuries when he fell and was “nervous” about speaking about what happened. He explained he was instructed “not to say what goes on in the house cause they don’t want to go to court.” The boy said when he gets hit with a belt, “I can’t scream cause the people next door will call the police.” During the “worse whooping” a few weeks earlier, he was hit in the leg with a belt until blood came out. The boy explained that if Mother or Husband ever found he was talking about the whoopings: “They might whoop me.” The boy eventually admitted the marks on his face were from Mother hitting him with a belt. When shown a picture of the marks on his back, he teared up. The boy said Mother had hit him with a belt on his back until Husband grabbed her and told her “that’s enough.” Mother told him that if the police ever came to speak to him that she and Husband need “to be present because bad things can happen when the police are there.”

During her CAST interview, the older girl said she was asleep when her brother got whooped that night. She stated someone called the police because they saw he “had owies everywhere.” The older girl said there were things she had been told not to say. She stated that if she disclosed what happened, “Momma is going to whoop me some more.” The older girl disclosed she would scream when she gets whooped. She said Mother hits the children with a black jump rope that she twists in her hand. The older girl had marks on her legs, back, behind and forehead.

The boy later disclosed to Caregiver other multiple instances of abuse. The boy said that he and the older girl “had to take their whoopings in silence. They were both made to stand in the comer for hours at a time and not permitted to sit. They were withheld food if they were on punishment.” He disclosed “this went on for days at a time.” The boy stated “his mom would whip him so hard on his hamstrings that he couldn’t lay down to sleep at night.”

The boy talked about one incident where he “was hurting really bad and he moved his foot so she taped his feet to the floor. She continued to whoop him but he said that he broke free and started running. He said he was going to run to his grandma[’]s house but his mom got in the car and caught him.” The boy said Mother went to the store and bought “super glue. She put it on my feet [and] my hands and stuck all of them to the floor and then whoooped me. She used a knife to free one of my hands and then gave me the knife to free my other hand and my feet.” He disclosed another incident where Mother “strapped him to the couch with tape, knocked down the curtains and rod . . . and then proceeded to whoop him with the rod.” The boy said this punishment “‘was the worst one ever’” because Mother “laid him flat out on the couch face down and sat on him for one hour.” The boy disclosed that “he couldn’t breathe.” 

The boy disclosed that on the night of the parent’s arrest, Mother “started off trying to whoop him but he was moving around too much. She told him that she was going to kill him. The mother instructed [Husband] to take over and stated ‘now you’re really going to die.’ The boy said that [Husband] was taking it too far and he was screaming to his mom ‘help me he’s going to kill me’ but she was ‘just standing there watching.’ He said that he could feel his hits ‘all the way to my bones.’”

The boy was eight years old. The girl was five.

Notice all the classic attributes: the kids are super reluctant to tell what happened, the parents have told them to be silent, etc. etc.

Different people can (and do) have different takes on corporal punishment. For example, my practices as a parent differs from those of my parents. Nonetheless, one advantage of a bright-line rule is the lack of a need to figure out how much hitting is too much. Clearly, we'd all agree that the hitting here went way too far, whether in California, Texas, or anywhere else. Having to not make those decisions on the fly is at least one advantage of a categorical approach on the subject.

You generally hate to see kids taken away from their parents. But here, not so much.

Kirschmeyer v. Helios Psychiatry (Cal. Ct. App. - March 15, 2023)

I'm certain that many doctors prescribe various medications to their friends and family members. I have no doubt about that. At some level, I also don't have a problem with it. It's a ton easier and cheaper to talk to your relative than it is to make an appointment, schlep to a doctor, pay the co-pay or deductible, etc. So if the doctor her was prescribing, say, antibiotics, I'd say that this dispute was a big nothingburger.

But she wasn't. First off, the doctor here -- Jennifer Dore -- was prescribing Adderall and Klonopin, which are drugs with a serious abuse potential. Second, she's a psychiatrist, not a regular old "say ah" doctor. Psychiatrists shouldn't (generally) be treating family members. You need more distance. Third, there's an underlying dispute about whether some Ketamine -- another potentially abused drug -- was perhaps diverted as well.

Given those facts, I have zero problem with the Medical Board of California issuing a subpoena to obtain the medical records of the family member to whom Dr. Dore gave these prescriptions. If there are in fact no medical records -- or insufficient medical records -- to show a valid reason to prescribe these drugs to the relevant family member, that's worth knowing. For sure.

Would I pull the medical license of any doctor who prescribed Adderall and/or Klonopin to a family member without a ton of backup medical records? Nope. Probably not. I could potentially see reasons for doing so, and even if I didn't, I might not think that it was such an egregious violation that it called for bouncing a person entirely from her chosen profession.

But issuing a subpoena to get at the underlying records? That's entirely proper. Inquiring minds totally legitimately want to know.

Which is precisely what the Court of Appeal holds here. 

People v. Ngo (Cal. Ct. App. - March 13, 2023)

I just want to republish two quotes from this opinion by Justice Ramirez:

(1) "Defendant My Ngo was a “shotcaller” in a Vietnamese gang. In 2000, when he was 19, he committed murder for hire; for $2,000, he shot the victim in the head." (The victim died.) My reaction: Seriously?! It only costs $2,000 to get someone killed? Wow.

(2) "Defendant, a gang shot-caller, committed murder for hire in cold blood. The likelihood that a future district attorney would recommend reducing his conviction to manslaughter is infinitesimal. Even if this fantasy materialized, almost certainly the district attorney would recommend a sentence and insist that defendant agree to it." My reaction: Uh, yeah. I'm kinda agreeing with you on that one, Justice Ramirez. At least in San Bernardino county, where this case arises. Though in, say, San Francisco? Hmmmm.

Seaview Trading v. CIR (9th Cir. - March 10, 2023)

I get it. You author an opinion in a tax dispute and think that the IRS acted too late, so find in favor of the taxpayer. One of your Ninth Circuit colleagues dissents, but you prevail because the district judge that is sitting by designation from Vermont is on your side. But even though it's just a tax dispute, the court takes the case en banc, and despite the fact that you're drawn for the en banc panel (yay!), you lose (boo!).

So, understandably, you file a dissent from the en banc opinion, which in you argue your side, with the same arguments that you already made in your now-vacated panel opinion. But you also up the ante a bit, telling the world that the en banc opinion will totally screw things up and is supremely wrong on the merits. You start your dissent with the following line: "Today, our court throws our tax system into disarray." And then get into more detail on just how wrong you think today's decision is. Claiming that the en banc opinion is not only "perplexing" but also conflicts with both "the Tax Code and common sense," and that the correct resolution of the case is "straightforward" and not at all complicated.

All that rhetoric is perhaps understandable. But I must say that it's a little strange coming from an en banc decision in which Judge Bumatay's opinion on the matter gets outvoted 10-1, without a single judge on the en banc panel -- even those judges who typically vote alongside Judge Bumatay -- adopting his position in this one.

Sometimes you're totally convinced you're right even though the rest of the world, including some very bright people, says you're wrong. Other times, a bit more modesty is perhaps warranted.

People v. Arreguin (Cal. Ct. App. - March 9, 2023)

The majority opinion by Justice Gilbert says relatively nice things about the concurrence. To wit, it says: "We are sympathetic to the views expressed by our colleague Justice Yegan in his well-reasoned concurring opinion." 

In turn, Justice Yegan is somewhat sympathetic to -- and complies with -- his duty to follow controlling California Supreme Court precedent.

But Justice Yegan isn't shy about expressing his opinion on the matter. Saying, in part: "I concur under compulsion of People v. Strong (2022) 13 Cal.5th 698 (Strong). The Court of Appeal is bound to apply the holdings of the California Supreme Court. . . . I reserve my right First Amendment right to express disagreement. (People v. Musante (l980) 102 Cal.App.3d 156, 159, conc. opn. of Gardner, P.J. [“I fully recognize that under the doctrine of stare decisis, I must follow the rulings of the Supreme Court, and if that court wishes to jump off of a figurative Pali, I, lemming-like, must leap right after it. However, I reserve my First Amendment right to kick and scream on my way down to the rocks below”]; see also Witkin, Manual on Appellate Court Opinions (1977) at pp. 168- 169 [just because the Court of Appeal is bound does not mean it is gagged].)"

Everyone gets to say what they think. That's one of the great things about America.

Even if you're on the Court of Appeal.

People v. Oliva (Cal. Ct. App. - March 9, 2023)

I discussed yesterday a lawsuit against In-N-Out Burger. Today, Justice Miller issued this opinion, the first line of which is: "David Bustamante (the victim) was shot and killed in the parking lot of an In-N-Out restaurant on Christmas Day in 2015." This leads me to the tentative conclusion that, in a creative (but fairly shocking) use of guerilla marketing, In-N-Out Burger is now the official sponsor of the opinions in the California Appellate Reports.

I might add that the first couple of sentences of the opinion were perhaps slightly confusing. They read: "David Bustamante (the victim) was shot and killed in the parking lot of an In-N-Out restaurant on Christmas Day in 2015. The victim was giving a tattoo to Nancy A. when he told her he had to go out to meet a friend, who he was going to give tamales that his mother had made." Which led me to say to myself: "Wait. Why was someone giving a tattoo to someone in the In-N-Out parking lot?"

As I read further, I finally understood that, oh, he was giving her a tattoo in his home, and then later drove with her to the In-N-Out, where he was shot.

Which makes sense. I mean, you could give someone a tattoo in the In-N-Out parking lot. Sort of like a prison tattoo. But that's not what was going down here.

Before the murder, anyway.

Piplack v. In-N-Out Burgers (Cal. Ct. App. - March 7, 2023)

I was keenly interested in reading this opinion at the outset because it involves a lawsuit against In-N-Out Burgers, which has a fair amount of cachet in the youthful fast food world. Who's suing such an esteemed burger joint, and for what?

Alas, it's just another one of these post-Viking PAGA arbitration cases. On the one hand, California says that you don't generally have to arbitrate PAGA claims since they're representative actions. On the other hand, the Supreme Court recently said that the FAA requires the plaintiff to arbitrate his individual PAGA claim. So what do you do with the representative claims when the individual has to arbitrate his own? Can the plaintiff still sue in court in a representative capacity -- e.g., with standing -- even though he's not go claims of his own in court?

The Supreme Court said "No." Since the individual can't bring his own claims in court, he can't still have his representative claims in court either.

But the Court of Appeal says: "Uh, actually, Supreme Court, you're wrong. I know you think you know what California law is on this issue. But, respectfully, you're not the last word on that one. We're going to still let the employee sue in court for his representative claims."

Which is pretty darn bold. Yet entirely within the province of a state court, which has the final word on the contours of state law, including but not limited to standing under state law (which may be -- and is -- different than federal standing principles).

So, in the end, an interesting opinion less because of who the defendant is and more for what the Court of Appeal actually holds.

Twitter v. Garland (9th Cir. - March 6, 2023)

We teach law students that prior restraints on speech imposed by the government are so dangerous that we don't generally allow them. But the Ninth Circuit today holds that this particular prior restraint is just fine.

Twitter wants to let the public know generally how many subpoenas it receives from the government each year that allegedly relate to national security (as well as what type). The federal government doesn't allow that, and instead calls this information "classified." So Twitter -- and its employees -- know full well how many subpoenas are received, but can't tell anyone. Under penalty of imprisonment.

That's a prior restraint. One that the Ninth Circuit holds is just fine, since "national security" would be allegedly harmed if the public knew what a plethora of Twitter (and Google, Microsoft, Yahoo!, etc.) employees already know. We have to make sure that the public isn't aware of how many subpoenas tech companies get each year, because our "enemies" could use that information to harm our country.

It's definitely about that, not simply a desire to keep the public in the dark. Because there's no precedent for the government using alleged national security concerns as a means of hiding things from the public.

If the controlling question at issue was whether the existing regulation -- which allows some disclosure -- allows enough disclosure, I could see reasonable arguments on both sides. But the opinion by Judge Bress goes much further than that, and is extremely deferential to the government's alleged interest in keeping these things secret. (Judge VanDyke's concurring opinion is even more deferential.)

Were the question limited to whether the government can stop Twitter from telling people that it didn't receive, say, any subpoenas in a particular category, I could see how that might be legitimately classified. But I would think that, particularly in the context of a prior restraint, it wouldn't be permissible for the government to try to hide, say, that 4500 subpoenas (rather than 450) were issued annually to Twitter. I'd think that the public would legitimately want to know that, and that the disclosure of that fact outside of Twitter employees themselves wouldn't harm national security pretty much at all, much less at a level that authorizes a prior restraint.

But what do I know? It's a Brave New World these days.

Breathe Southern California v. American Lung Ass'n (Cal. Ct. App. - March 3, 2023)

When considered rationally, I imagine that any litigation between any two entities should normally be viewed as something "sad to see," since it necessarily involves substantial deadweight losses to all of the parties and they pay their lawyers instead of doing something more productive with the money.

That said, I still think that this opinion is sad to see. Not because the Court of Appeal necessarily decides the case the wrong way, but rather because it's a fight between two nonprofit organizations that do public interest work (Breathe Southern California, on the one hand, and the American Lung Association on the other) as to which entity is entitled to various bequests made -- but not yet funded -- during the period in which these two nonprofits were affiliated.

You just gotta feel bad that instead of working the dispute out informally, the two organizations had to sue each other. Particularly since the litigation spanned quite a period of time, including multiple trips to the Court of Appeal. Too bad that money was spent on lawyers rather than on something more productive, right?

But, again, you could say the same thing about pretty much every other lawsuit in the universe as well.

Still.

People v. Ung (Cal. Ct. App. - Feb. 28, 2023)

Justice Greenwood is a lot nicer than I would have been in this opinion.

Kalvin Ung stole a ton of cryptocurrency from various people back in 2018 -- roughly $1.6 million worth of the stuff. He was convicted and sentenced to ten years in prison.

In late 2021, the court ordered Mr. Ung to give restitution to the people he stole from; namely, that he give 'em back the crypto he stole. Mr. Ung (and his lawyers) contended both below and on appeal that such an order was improper. According to Mr. Ung, the value of the crypto back when it was stolen was only $1.6 million, so even though it's worth almost $16 million now (!), he can only be ordered to return the original valuation of $1.6 million. Apparently Mr. Ung thinks he gets to keep the remaining $14 million he stole.

There's a word for that; chutzpah.

The argument doesn't work. Below as well as on appeal. When you steal an item with a fluctuating value, you can be ordered to give the stolen property back as restitution. The restitution order doesn't need to be a set dollar figure. It can simply be -- as here -- the thing you stole.

Which not only is the law, but totally, 100% makes sense. You don't get a $14 million bonus just because the stuff you stole is worth a lot more now than when you originally stole it.

Mr. Ung's argument to the contrary borders on the frivolous. It's not frivolous, mind you; not legally, anyway. It's just clearly, unambiguously, and indisputably totally one thousand percent wrong.

Not even an argument, in my mind, worth making.