Scheenstra v. California Dairies (Cal. Ct. App. - Jan. 30, 2013)

Running a dairy is apparently pretty complicated.  You'd think it's basically just about buying cows and milking them.  But in the modern world, there's tons of stuff that goes on behind the scenes that's incredibly complex.

San Mateo Union High School Dist. v. County of San Mateo (Cal. Ct. App. - Jan. 31, 2013)

When I first saw the caption of this opinion, I tried to guess what it might be about.  After all, it's pretty unusual for a school district to sue a county.

Litigation about class size?  Tax revenues?  Teacher contracts?  Playground equipment?

I spent ten seconds or so trying to guess.  I could have taken a year and would never even have come close.

It's about an investment in Lehman Brothers that went bad.

Ah, San Mateo.

U.S. v. Jesus-Castenada (9th Cir. - Jan. 30, 2013)

It might be one thing if the confidential informant in thsi case testified at trial in a burka, or perhaps even (as the government requested) with dark sunglasses. 

But he didn't.  The CI wanted to partially "disguise" his identity because he was allegedly involved with investigations against the Sinaloa cartel.  The trial court let him do so by wearing a fake mustache and a wig.  The defendant wanted his conviction reversed on this basis.

There's a Texas state court case that reversed a conviction when a witness was allowed to wear dark sunglasses, a baseball cap pulled down over his forehead, and a jacket with an upturned collar.  You can see why.  If -- as in that case -- the jury can't view the eyes, mouth, or other facial expressions of a witness, it's going to be much harder for the jurors to judge the witnesses' credibility.

But a fake moustache and a wig don't cover one's face.  So Judge Bea holds -- correctly, in my view -- that there's no reversible error here.

I just wanted to add one thing to Judge Bea's opinion.  Something that he doesn't mention, but that I view as alternative support for the Ninth Circuit's holding.

Remeber that even normal (i.e., non-CI) witnesses are allowed to grow a mustache.  Even normal witnesses are also allowed to wear a wig.  Or toupees.  Or hair weaves.  That's all the CI did here.  The only difference is that the CI here did so for reasons apart from trying to look more attractive.  But that's a distinction without a difference.  If you can wear a mustache or toupee -- and you can --  you can wear 'em regardless of the reason.  Whether it's beauty, vanity or "disguise" doesn't matter.

In short:  Mustache and hair weaves:  Okay.  Burkas:  Different story.

People v. Yearwood (Cal. Ct. App. - Jan. 29. 2013)

One of the problems with initiatives is that they're sometimes not very well worded, and -- arguably because they have not gone through the legislative process -- do not adequately address complicated procedural or substantive uncertainties.

That said, I'm not sure that even a bill through the Legislature would have expressly addressed the issue raised by this case.  Proposition 36 eliminated mandatory 25-to-life sentences for nonviolent three-strikers in the future, and also gave a limited safety valve for prior nonviolent three-strikers to attempt to get out of their sentence as well.  The statute doesn't say, however, which category applies to someone who's been sentenced but whose conviction is not yet final; e.g., because it was on direct appeal when the initiative became effective.  This substantively matters, because the safety valve for the latter category is somewhat smaller than the rules that apply to the former.

The Court of Appeal decides that the more limited safety valve applies to people whose sentences were not yet final.  As a result, Ricardo Yearwood may well find that the weed that he had in prison will indeed cost him 25 years to life.

Gregory v. Cott (Cal. Ct. App. - Jan. 28, 2013)

Primary assumption of the risk doesn't just bar claims for sports injuries.  It also bars claims or assault.  At least when you're the caregiver of an Alzheimer's patient.

Boxer.  Caregiver.  No practical difference.

Dichter-Mad Family Partners v. U.S. (9th Cir. - Jan. 28, 2013)

When you're a district court judge -- or, perhaps more accurately, the law clerk for a district court judge -- and you write a 70-page written opinion dismissing a complaint, you want to get a little love from the Ninth Cicuit if and when the losing party decides to appeal.

Judge Stephen Wilson gets it here.

The Ninth Circuit issues a per curiam opinion that adopts Judge Wilson's opinion as its own.  Which is good for nearly everyone.  Judge Wilson (and his clerks) get the glory.  The Ninth Circuit gets a complicated case off its plate quickly and easily.  The winning party wins.

The only people who are unhappy are the losing sides.  Who wrote an entire Ninth Circuit brief -- one that presumably had lots to say about the (alleged) defects of the district court's opinion -- but who don't get the satisfaction of having the Ninth Circuit tell them why they're wrong.

Though that also happens with unpublished Ninth Circuit decisions every single day.

So bask in the admiration, Judge Wilson's chambers.  Nice opinion.

In Re Marriage of Campi (Cal. Ct. App. - Jan. 24, 2013)

Here's a family law case.  A house is San Mateo worth over a half million dollars.  Stock options.  Multiple timeshare condos.  The husband works, the wife stays at home.  For fun, in his spare time, the husband plays the accordian.

Pretty routine in San Mateo.  What does the husband do for a living?  Lawyer?  Investment banker?  Tech guy?

Nope.  Garbage collector.  Making $84,000/year.

Miller v. Bank of America (Cal. Ct. App. - Jan. 25, 2013)

Class action attorneys make a boatload of money, right?  They file all these easy lawsuits and then recover millions of dollars in attorney's fees.  What a racket, eh?

Except, of course, for those cases in which the litigation lasts fifteen years and in which the attorney recovers absolutely nothing.

Like here.

People v. Tinker (Cal. Ct. App. - Jan. 24, 2013)

Just in case you think that selling methamphetamine is as "cool" as it is on television, take a look at Alan Tinker.  He's in the real world.  He's caught in possession of $30,000 worth of meth.  So he's a high-volume dealer.

And he lives in his van.

Avidor v. Sutter's Place (Cal. Ct. App. - Jan. 23, 2013)

Law not working out for you?  What about becoming a poker dealer?

Apparently even dealers at fairly low-level card places make a fair amount of money in tips.  Around $750 to $1500 a week.

Not bad.  Especially since I'm sure they declare every penny to the IRS.

Ratcliff v. Terrones (Cal. Ct. App. - Jan. 22, 2013)

Sometimes I wonder what the appellant's attorney was smoking that made counsel think that s/he had any chance of success on appeal.  Like here.

The trial court here was obviously correct.  You're allowed to have a relative create a will for you even if that relative is related to a beneficiary.  That person simply has to be a relative at the time of the creation of the will.  Appellant's theory that the person also has to be a relative whenever you die is simply silly.  It's silly in theory, silly in practice, and is also an argument that's wholly unsupported by the relevant statutory text.  (Among other things, how could someone know in advance to whom  s/he is necessarily going to be related when s/he dies?  Lots of things can happen, particularly with respect to in-laws.)

Sometimes you read an appeal and just scratch your head.  How could counsel be so blinded by their own "brilliance" that they think they've got a shot on appeal?  That the appeal's worth the time and/or money?

Classic example.

Cardio Diagnostic Imaging v. Farmers Ins. Co. (Cal. Ct. App. - Dec. 18, 2012)

No opinions today.  A holiday for most regular people.  So it permits us to answer that age-old question:  Is water from an overflowing toilet "Water that backs up or overflows from a sewer, drain or sump?"

Yes, according to Farmer's Insurance Company.  (Apparently, according to their commercials, Farmers' policies cover obscure space junk falling onto your house, but not overflowing toilets.  Which is a good business model, if you think about it.  Though not so good for policyholders.)

The Court of Appeal agrees with Farmers.

Remember that the next time you see those commercials.  "We are Farmers.  Da-da-da-da-da-dump."

U.S. v. Zepeda (9th Cir. - Jan. 18, 2013)

I'm not sure that either the majority or the dissent really deal with the centrally troubling part of this case.

The problem is a straightforward one, and -- sadly -- one that occasionally shows itself in various different circumstances.  What do you do in a criminal prosecution if the government accidentally introduces insufficient evidence of something's undeniably true?

In this this case, the particular problem is that the government had to establish that the defendant was an "Indian" (in order to justify a federal prosecution), and indeed introduced evidence to that effect, but forgot to introduce evidence that the particular tribes to which defendant belonged were federally recognized.  Those tribes are, in fact, federally recognized.  No one disputes -- or could reasonably dispute -- the validity of those truths.

But there was no evidence of those undeniable facts below.  Does that mean that the defendant gets to walk free -- even (as here) in his commission of an incredibly serious crime -- and never be charged again, since double jeopardy would then bar a successive attempt to prosecute him?

The Ninth Circuit says "Yes."  Whereas the dissent would let the Court of Appeal take judicial notice of the federally recognized status of the tribes and hence affirm the conviction.

Both of these approaches seem to me to have serious problems.  I'm somewhat sympathetic to the view of the dissent, since it avoids the problem of letting a criminal go free purely due to a blunder of the constable.  (It's also worth a reminder that, unlike reversals in most cases, which merely require the prosecution to conduct a new trial, because the reversal here is for insufficiency of the evidence, this is in fact a case where the defendant gets off scot free.)  But the majority's correct, in my view, that you can't do that.  Yes, Federal Rule of Criminal Procedure 201 permits a court -- including an appellate court on appeal -- to take judicial notice regarding whether a particular tribe is federally recognized.  But it also says that, in a criminal trial, the court is required to instruct the jury that it is not obligated to accept that judicially noticed fact as true, and there's a Sixth Amendment right to have the jury decide that "fact" notwithstanding the instruction.  So I think that the majority's correct that you can't affirm the conviction here merely through resort to judicial notice.

At the same time, the majority's reversal of the conviction and (effective) preclusion of a retrial on double jeopardy grounds seems troubling as well.  Not only does it seem inequitable to the victim and deleterious to society, but it also seems somewhat at odds with other criminal law doctrines which we repeatedly employ.  For example, we constantly affirm convictions based on purported "harmless errors," including lots of errors that likely have far greater practical consequences than the one here.  We do so because we don't like to alter results on the basis of an error which likely didn't affect the result.  The theory posits that trials are chock full of errors, but only those that actually might change the result are the ones about which we care.

But the error here is surely as harmless as any error can possibly be.  Was it wrong not to include some testimony and/or an instruction about whether the various tribes were federally recognized?  Sure.  Did that error change the result; in other words, would the result possibly have been different but for the error?  No way.  No freaking way.  There's a zero percent probability that the defendant would have been able to successfully persuade a jury that the tribes here were not recognized by the federal government as required by the statute.  If there were ever a mistake that we can confidently be assured didn't/wouldn't change things one iota, this is it.

Now, I recognize that there's arguably a qualitative distinction between "regular" trial errors and evidentiary omissions such as the one here.  But I'm far from confident that this different should matter.  If it's harmless, it's harmless.  End of story.

Does that mean that, in the end, I agree with the dissent?  (Albeit for different reasons.)  No.  I'm at least tentatively of the view that our concern for the Sixth Amendment -- as well as the potential (if only in theory) for permissible jury nullification -- means that we can't affirm convictions like these based upon a routine application of harmless error doctrine.  The defendant should likely be entitled to a trial in which all of the elements of an offense are, in fact, set forth and established, and found to be so by a jury.

But at least in cases like this one, instead of a reversal of the conviction and a double jeopardy bar, I think it's plausible to hold that a remand for retrial should be permitted.  That would avoid the subpar consequences of an effective acquittal while still preserving the defendant's Sixth Amendment right to be convicted by a jury -- one that's entitled to reject even judicially noticed facts were it to so elect.

I understand that this would require a reevaluation of existing double jeopardy principles, since (so the argument goes) a defendant is "entitled" to an acquittal if the problem is (as here) insufficiency of the evidence produced at trial.  But I think this is a pretty good case in which to articulate and apply such a vision.  At least when the omitted element involves facts subject to judicial notice, I don't see why the double jeopardy clause should apply.  Just like we don't reverse convictions for other sorts of harmless error.  We might still be compelled to order a retrial rather than permitted to affirm the conviction notwithstanding the error, but the relief to which the defendant would be entitled would be a retrial -- not a preclusive finding of "not guilty."

The problem here doesn't just exist in Indian cases.  There are all sorts of analogues in other criminal cases as well; for example, federal bank robbery cases in which an element of the offense is that the bank is FDIC insured -- which virtually all of them are -- in which the prosecutor forgets to establish this element at trial.  In my view, whenever the error involves the omission of a fact properly subject to judicial notice, the proper remedy on appeal should be a reversal and remand for retrial rather than merely the former.

In this particular case, the defendant doesn't entirely go free, since -- as it so happens -- one of his convictions (for conspiracy) applies to Indians and non-Indians alike.  (Put this down as yet another reason why the crime of conspiracy continues to be a prosecutorial darling.)  But he nonetheless gets entirely absolved of multiple incredibly serious counts.  Which ain't right.

 So ponder whether a third path for cases like this one might be worth considering.

Furnace v. Sullivan (9th Cir. - Jan. 17, 2013)

You want a vegetarian meal, you say? 

Here you go.  Here's some pepper spray in the face.

Kassey S. v. City of Turlock (Cal. Ct. App. - Jan. 17, 2013)

Here's a creative attempt to hold a City vicariously liable for a police officer's sexual assault of a minor despite precedent holding that there's no such liability.  It nonetheless doesn't work.

Momma, don't let your babies grow up to do ride-alongs with cops.

In Re Hailey T. (Cal. Ct. App. - Dec. 19, 2012)

The state would never take away your children, right?  You're a good parent.  No domestic fights.  No substance abuse problems.  A good and loving set of parens.  The worst that's ever happened to your kids was an isolated accidental injury, as happens to nearly every child at some point.  DCFS doesn't take children away in those circumstances, right?

Read this opinion -- from my hometown (San Diego) -- and see if you still agree.

There but for the grace of God . . . .

Bell v. Feibush (Cal. Ct. App. - Jan. 15, 2013)

Sometimes I mention a case just because it's helpful to those who litigate.

Like this one.

We all know that fraud claims open up the possibility of punitive damages.  Did you know that there was an obscure California statute that also allows you to recover mandatory treble damages, as well as attorney's fees, in such cases as well?

There is.  It's Section 496 of the Penal Code.  You might think it's only applicable (if at all) to people who actually steal property.  But it includes theft by false pretenses.  Including pretty much every fraud claim you might allege.  At least according to the Court of Appeal.

Pretty neat.  Didn't know that before today.  Something that I'll definitely use in the future.

Wilson v. CIR (9th Cir. - Jan. 15, 2013)

Judge Bybee authors a dissent that makes a very good (albeit sub silentio) argument that the Supreme Court should grant certiorari in this important case.

There's only one problem.  It's a tax case.  About administrative law.  Zzzzzzzzzzzz.

But still.  It's a darn good argument.  Listing all sorts of splits and competing views and saying, essentially, that even though this might seem to be the most soporific issue in the universe, it's actually something that's important.  Look how he begins:


"The question presented in this case is one fundamental to administrative law: What is the scope of review—and, concomitantly, the standard of review—of the Tax Court’s review of the Secretary of the Treasury’s decision to deny equitable relief to an innocent spouse? . . . .


The question is of more than passing interest.  It goes to the heart of the place of the Tax Court in our administrative system.  The question has splintered the Tax Court, which has proceeded along three different paths, dragging four circuit courts with them in the process. The Tax Court initially held that it would review the Secretary’s exercise of discretion under § 6015(f) for abuse of discretion.  [Cite]  The D.C. and Fifth Circuits confirmed that position.  [Cites]


Then, a divided Tax Court changed its mind and held that it would use a de novo scope of review—including trial de novo—but an abuse-of-discretion standard of review. [Cites]   That position was confirmed by a divided Eleventh Circuit. [Cites]


Finally, a divided Tax Court changed its mind yet again and decided that it was entitled to both a de novo scope of review and a de novo standard of review.  [Cites]


The majority’s position not only departs from the D.C., Fifth, and Eleventh Circuits, but also its reasoning is
inconsistent with the Eighth Circuit’s decision in Robinette v. Commissioner.  439 F.3d 455, 459–61 (8th Cir. 2006) (rejecting the Tax Court’s claim to de novo scope of review in proceedings under 26 U.S.C. § 6330 and concluding that the Commissioner’s decision was subject to abuse of discretion review under APA § 706(2)(A)); see also Keller v. Comm’r, 568 F.3d 710, 718 (9th Cir. 2009) (citing Robinette with approval).

I cannot follow the majority in this convoluted path. Because the Tax Court is a “reviewing court” for purposes of the judicial review provisions of the APA, I am persuaded that its scope of review is the administrative record before the IRS, and that the Tax Court can only review the Secretary’s exercise of discretion for an abuse of discretion pursuant to 5 U.S.C. § 706(2)(A).  I respectfully dissent."

Almost makes you want to read the majority opinion and dissent in their entirety, right?  Right?

Almost.

We'll see if the Supreme Court feels like being an uber-nerd and take this one up.

In Re Marriage of Facter (Cal. Ct. App. - Jan. 14, 2013)

One of the downsides of being an attorney is that if you get divorced and litigate the case, the details of your personal life -- or at least your financial life, and well as your interactions with your spouse concerning these matters -- may be set forth in a publication read by your colleages.  For example, the printed pages of the California Appellate Reports.

Such is the life of Sherman & Sterling attorney Jeffrey Facter.

So be good to your spouse.  Even if, as here, you have a prenup.

Riverisland Cold Storage v. Fresno-Madera Prod. Credit Ass'n (Cal. Supreme Ct. - Jan. 14, 2013)

Wow.  The California Supreme Court today unanimously overrules longstanding precedent -- first articulated in 1935 -- and holds that parties can indeed make fraud claims even if those claims are inconsistent with the express terms of a written contract.

In short, Pendergrass bites the dust.

This will make fraud claims -- as well as recission claims based on fraud -- a lot, lot easier to assert.  The Court is persuaded that the result will be a net decrease in fraud, since now you won't be able to defraud people and then write a contract that effectively covers your fraud.

But there's a different view as well.  Before, a party couldn't get out of a contract by claiming that the other side orally told them something different.  Now they can.  And as long as you have your own testimony, you get past summary judgment as well.  So you get a trial and/or a settlement.

Not bad.  Not bad at all.  Which may in turn give you a pretty large incentive to "remember" alleged oral statements that the other side purportedly told you that were inconsistent with a contract that did not turn out as favorably as you had hoped.

It's a big day for civil litigation in California.  For better or worse.