People v. Rekte (Cal. Ct. App. - Jan. 8, 2015)

I'm all for taking appeals very, very seriously.  Because what seems small to us may nonetheless be huge to someone else.

But all of this for a traffic ticket for making a right turn after the light had turned red?

That's a lot of work for very little payback.

Arizona v. ASARCO (9th Cir. - Dec. 10, 2014)

Back in October (of 2013), Judge O'Scannlain wrote an opinion that said that a punitive damages award of $300,000 in a Title VII case in which the jury awarded nominal ($1) damages was excessive, and reduced it to $125,000.  I was critical of the opinion at the time, and expressed some support for Judge Hurwitz's dissent.

The Ninth Circuit thereafter took the case en banc.  What was the ultimate vote?

11-0.  Judge Hurwitz was right.  The en banc court reinstates the $300,000 punitive damages award.

People v. Jalalipour (Cal. Ct. App. - Jan. 7, 2015)

Here's a crime that doesn't fill up a plethora of pages in the California Appellate Reports:  a state criminal prosecution of the owner of twelve Subway restaurants for underpaying state sales tax revenue.

Notwithstanding the prosecution, white collar criminals everywhere should be happy at the underlying events.  Sure, the store owner stole nearly $1.4 million from California.  Take one-tenth of one percent of that from a dude on the street and you're looking at serious prison time.  But here, the trial court lets defendant plead guilty to a misdemeanor -- although the prosecution, which had filed felony charges, opposes such relief -- because if he pleads guilty to a felony, under his contract with Subway, he may well lose his Subway stores.

God forbid we should deprive you of the instrumentality of your crimes, eh?

Fear not, though.  Although the Court of Appeal reverses the trial court's decision in this regard -- over the dissent of Justice Thompson -- all that's really at stake here is timing.  The trial court can permissibly drop the charge to a misdemeanor before the prelim.  Or it can drop the charge to a misdemeanor after the defendant has pled guilty, and can even do so with an indicated sentence.  The only thing it can't do (the thing that it did here) is drop it after the prelim and before the plea.

No problem.  We'll just do the thing over.  Take the plea, drop it down, and then sentence the thief of $1.7 million to three years of probation.

Problem solved.

People v. Toure (Cal. Ct. App. - Jan. 5, 2015)

Here's a heartwarming story from around Christmastime a couple of years ago:

"On December 23, 2012, at approximately 8:30 or 9:00 p.m., Alece Collins was driving in her automobile behind a Penske truck and a tractor-trailer semi-truck westbound on State Route 58 near Highway 395, in San Bernardino County. The tractor trailer swerved several times over the lane division line, into the eastbound lane of travel. Then it continued for approximately two miles in the eastbound lane of oncoming traffic, eventually striking a gray or silver passenger car. Other cars in the eastbound lane swerved and went off the road to avoid the tractor-trailer, which continued westbound in the eastbound lane.

The semi-truck eventually stopped a few thousand feet west of the site of the collision, on the right side of the road, which was on the north side of the westbound lane. The Penske truck pulled in front of the semi-truck and stopped, while Ms. Collins pulled in behind the semi-truck. The driver of the Penske truck called 9-1-1. The defendant exited the semi-truck, mumbling. Ms. Collins and two of the occupants of her vehicle exited her vehicle. Ms. Collins took a BB gun with her, and one of her companions checked the interior of the cab of the semi-truck for other occupants, but found none. One of Ms. Collins’ companions took the keys out of the ignition of the semi-truck so defendant could not drive off again, because defendant had said something like, 'I’m out of here,' and had gotten back into the cab of the truck. The interior of the truck smelled of alcohol so Ms. Collins assumed defendant was intoxicated."

Good for Ms. Collins and her companions.  Pulling out the BB gun was perhaps unnecessary.  But here's a case where taking the law somewhat into one's own hands and blocking a drunk driver from continuing on his course of conduct seems commendable.

What about the drunk driver of the tractor-trailer, you might ask?  He's a sharp contrast to Ms. Collins:

"CHP Officer Chester opened the passenger side door and asked defendant to exit the vehicle, more than once. As soon the door of the truck cab opened, the officer could smell alcohol. Defendant yelled obscenities and the officer had to repeat his request two or three times before defendant started to walk between the dashboard and the passenger’s seat towards the passenger door. Officer Chester grabbed defendant’s arm to assist him out of the truck, fearing that defendant would fall out of the truck if impaired by drinking. 

Defendant was angry and clenched his fists. Officer Chester asked defendant to turn around so he could frisk defendant for weapons, but as defendant turned around, he spun to the left with his left elbow. CHP Officer Williams, Officer Chester’s partner, blocked the blow and applied a bent wrist control hold on defendant. Throughout the process, defendant continued yelling obscenities, and struggled to free his arms from Officer Williams’ control. 

After being handcuffed, the defendant still fought and screamed, yelling obscenities and kicking Officer Williams. At around this time, CHP Officers Camara and Bostrum arrived. Because defendant was now spitting at the officers, Officer Camara put a spit sock over his head. As Officer Camara put the spit sock on defendant, the officer noticed defendant’s eyes were red and watery, his speech was slurred, and the officer could smell alcohol on defendant’s breath. However, field sobriety tests could not be administered due to the state of defendant’s agitation. Defendant continued to struggle, thrash about, and kick the officers, so leg restraints were applied upon the arrival of two deputies from the San Bernardino County Sheriff’s Department. . . .

At the Barstow station, Officer Camara admonished the defendant of the implied consent to blood-alcohol testing, but defendant refused, using more profanity. Defendant did not consent, but he was still agitated, and he could not be released from restraints until after a blood draw had been performed (he had been “hogtied” for approximately one to two hours already), so the officers wanted to limit the time defendant was in that position. Because blood alcohol content degrades over time, two hours had already passed, and because he was unsure of the availability of a magistrate who could issue a warrant, Officer Camara consulted with his sergeant, who approved a forced draw. The results of the tests on defendant’s blood showed a 0.15 blood alcohol level."

That'll get you four-plus years in prison.

Schultz v. WCAP (Cal. Ct. App. - Jan. 6, 2015)

I had no idea that workers' comp applied to traffic accidents that occur (1) in the parking lot of your employer, (2) anywhere within the (often-large) location of your employer, or even (3) making a turn on a public highway while attempting to enter your place of employment.

Now I know.

Hudec v. Superior Court (Cal. Supreme Ct. - Jan. 5, 2015)

The California Supreme Court unanimously holds today that people found not guilty by reason of insanity have a statutory right to not testify at subsequent proceedings in which the state wants to continue their commitment to a state hospital on the grounds that the patient's continuing mental disorder represents a "substantial danger" to others.  Since the statute says that the patient has all rights at that proceeding that would be available to a criminal defendant, that includes the right not to testify.

Seems fair.

As a practical matter, however, the state's clearly going to have someone -- probably many people -- testify that the patient is still crazy and represents a danger to others.  At which point the patient is going to have to try to rebut that testimony.  That's going to be tough if the patient doesn't testify.  Especially since my strong, strong sense is that, regardless of what the law is, the factfinder is going to hold it against the patient if they do not get up on the stand and demonstrate some passive lucidity.

In short, if they say you're still crazy, you've got a right, but you'd be crazy to invoke it.

U.S. v. Gnirke (9th Cir. - Jan. 2, 2015)

The only published opinion -- thus far -- in California in 2015 involves the following sympathetic party:

"In 1995 David Gnirke was living with his girlfriend and her three children at the U.S. Marine Corps Base at Camp Pendleton, California. One night, Gnirke’s girlfriend returned home to find Gnirke icing the genital area of one of her twin babies. Gnirke explained that the baby had gotten itself caught on the top rail of the crib. Upon being taken to the hospital, medical staff noted swelling of the genital area that the staff did not find to be consistent with Gnirke’s explanation. A doctor concluded that '[t]he best explanation for the penile injury is that hard suction was applied to the penis.'

Gnirke was tried and convicted of aggravated criminal abuse of a child under 18 U.S.C. § 2241(c), and corporal punishment or injury of a child under California Penal Code § 273d. He was sentenced to 235 months of imprisonment and five years of supervised release."

That's a bad start.

But Mr. Gnirke makes it even worse.  In prison, "Gnirke had refused to participate in a sex offender treatment program while incarcerated and was found in possession of pornographic material. He also admitted to using hard drugs and alcohol while in prison—a risk factor for sexual recidivism. Based on an actuarial risk assessment tool, Gnirke’s risk for sexual reoffending was assessed as 'Moderate-High' (between the 81st and 90th percentile) relative to other adult male sexual offenders."

Once it comes time to release Mr. Gnirke, the district court imposes various conditions as part of his supervised release.  The one at issue in this appeal orders him to "'not possess any sexually explicit material involving children and/or adults, as defined by 18 U.S.C. § 2256(2),' the federal statute criminalizing possession and distribution of child pornography."

The part of that condition that prevents him from possessing child pornography is obviously okay.  But you will notice that the restriction also prevents him from possessing any sexually explicit material that involves only adults.  On the theory, as the district court expressly held, that "one thing leads to another;" i.e., that if you possess adult pornography, that'll lead you to molest children.

But even that's not the issue here.  Rather, the condition also goes on to order Mr. Gnirke to "not patronize any place where such materials or entertainment are available."  Which, as the Ninth Circuit notes, "prevents him from setting foot inside his local Walmart, a library that loans R-rated movies, or a movie theater showing an R-rated film with a simulated sex scene (even if Gnirke enters the theater to see a different film)."

That's too much for Judge Christen.  Who holds (joined by Chief Judge Thomas) that that portion of the order is impermissible.

Judge Milan Smith doesn't agree.  He'd hold that even this provision is perfectly fine.  Gotta keep the perverts away from everything.  Even the local Walmart and library.

Henry v. Ryan (9th Cir. - Dec. 30, 2014)

It starts here with the panel opinion last year.  Then, earlier this year, the panel decided not to reconsider its opinion.  But, several months ago, the case gets taken en banc, over a blistering dissent.  The Ninth Circuit wants to see whether this death penalty case could be affected by a contemporaneous case that has also been taken en banc.

But 2014 ends not with a bang, but with a whimper.  The case gets voted as "related" to the other case, which means the same panel now resolves both.  Argument's then heard in the first case.  And, today, the Ninth Circuit says:  No big deal.

No need to do anything further in this one.  No stay.  En banc proceedings over.  Mandate issues forthwith.

Good luck with the Supreme Court, Mr. Henry.  Because you're getting nothing from the Ninth.

Which in turn means that he should enjoy 2014.  Because he's unlikely to see the end of 2015.

Mann v. Ryan (9th Cir. - Dec. 29, 2014)

Welcome to the new era.

Published opinions get rare around Christmas time for both the Ninth Circuit and the California appellate courts.  But today we get something from the Ninth Circuit.  It's an opinion by now-Chief Judge Thomas, joined by Judge Reinhardt, with a dissent by former-Chief Judge Kozinski.  In a death penalty case, no less.

Can't ask for a much smarter, or more distinguished, panel.  Not surprised to see the lineup, either.

Chief Judge Thomas says that Eric Mann received ineffective assistance of counsel at the sentencing phase (albeit not at the conviction stage) because his attorney failed to investigate -- or present at trial --some pretty huge mitigating facts.  Judge Kozinski, by contrast, says that the Ninth Circuit's at it again, and that the Supreme Court will summarily reverse or Mann will just get his death sentence reimposed on remand.

The latter's certainly a possibility.  So's the former.

As for who has the better normative argument, well, I'll leave that to the authors.  I can't add much more than what's in their respective opinions.

I will say one thing, however.  When you decide to rip off a kilo of coke from a drug dealer by giving him a shoebox full of paper instead of money, I suggest three things.  First, be a good shot.  Mr. Mann had that one covered.  His first shot went straight through the heart of the first guy, and his second shot severed the aorta of the second guy.  Second, have a plan to dispose of the bodies.  Mr. Mann did not initially satisfy this requirement, but he thought up a good one pretty quickly.  He cleaned his house, recovered the bullets, patched the holes, dumped the bodies, and hammered down the guns and ditched them in a lake.

Finally, if you've got a confederate for all of the above, don't piss her off.

That last thing is what tripped up Mr. Mann.

The police searched the house right after the murders, and found the patches, but couldn't definitively pin the murders on him.  So the double homicide when cold.  For four years.

But Mann's girlfriend, who knew about (and saw) the whole thing, eventually got tired of Mann's abuse and took their daughter and moved from Arizona to live with her father in Washington.  And, shortly thereafter, told the police about the crime.

Hence Mann's conviction and presently-vacated death penalty.

The lesson for 2014 is to not commit double murders.  Or, if you do, to be nice to the witnesses thereof for the rest of your life.

San Luis v. Locke (9th Cir. - Dec. 22, 2014)

It's got an 11-page, single-spaced caption!  It's got a four-page "Table of Contents"!  It's 80 single-spaced pages long!  It ends with a two-page "Glossary of Terms"!  It's an environmental case about whether the National Marine Fisheries Service ("NMFS") properly complied with the Administrative Procedures Act ("APA") when it developed its Biological Opinion ("BiOp") to evaluate under the Endangered Species Act ("ESA") the impact of the plans of the Department of Interior's Bureau of Reclamation ("Reclamation") to extract water in California's Central Valley to the possible detriment of the "Delta's endangered Salmonids"!

I can't pitch today's opinion by Judge Tallman any better than that.

Graciano v. Mercury Ins. Co. (Cal. Ct. App. - Nov. 12, 2104)

I agree with the Court of Appeal.  There are plenty of cases in which an insurance company acts in bad faith by failing to timely accept a policy limits demand.  The trial court thought that this was one of them.

But it's not.  The insurance company could have perhaps gotten its act together a little better and perhaps a little faster.  But it acted, in my view, pretty darn reasonably.  Plaintiff's (understandable) effort to set up a bad faith claim worked below.  But even though the insurer wasn't perfect, it was not properly found liable for bad faith.

Check out the facts and see if you agree with me and the Court of Appeal or with the trial court.

Lennar Homes v. Stephens (Cal. Ct. App. - Dec. 18, 2014)

Pigs get fat.  Hogs get slaughtered.

Lennar Homes of California learns that lesson today.

It put an incredibly onerous "indemnity" clause into its contract of adhesion with its home buyers, and then tried to enforce that clause to force a named plaintiff in a class action suit against it to pay all of Lennar's attorney's fees.

The trial court granted the home buyer's motion to strike Lennar's indemnity action under the anti-SLAPP statute, and the Court of Appeal affirms, finding the clause unconscionable.

So now Lennar has to pay the other side's attorney's fees for trying to force it to pay theirs.

Don't be greedy.

Arduini v. Hart (9th Cir. - Dec. 17, 2014)

There's only one published opinion from the Ninth Circuit today.  But it's a procedural doozy.

Do you remember your first year of civil procedure?  That's what this case is all about.  (At least as I read it.)  It's about the intersection between issue preclusion and the Erie doctrine.

Okay.  Stop screaming.  Sorry to take you back to that nightmarish era.  Fear not.  It's over now.  No one's going to test you on this stuff any more.  It's all for fun at this point.

Here's the basic scoop.  Shareholder A files a shareholder derivative suit against Company.  It gets dismissed because the shareholder never made a demand on the directors, with the court finding that a demand wouldn't have necessarily been futile.  Thereafter, Shareholder B files a similar derivative suit against Company, again without making a prior demand.  Shareholders A and B are entirely unrelated (different parties, counsel, etc.) apart from being shareholders in the same company.

Does the prior dismissal of the first lawsuit operate as issue preclusion, and thereby compel the dismissal of the second lawsuit, with respect to the futility of a demand?

The Ninth Circuit says "Yes."

Before we talk about Judge Callahan's conclusion, however, we have to mention something that her opinion somewhat curiously omits:  Erie.

Judge Callahan expressly analyzes issue preclusion here according to Nevada law.  Which might make some initial sense, since the first lawsuit was indeed filed in Nevada.

But there's a problem.  A little thing called Erie.  Because the first lawsuit was filed in federal court, not state court.

Preclusion is generally governed by the law of the rendering court.  That way the parties can know in advance what claims and/or issues will be subsequently precluded, and can conduct themselves in the litigation accordingly.  Makes sense.  Hence, if the first lawsuit had been filed in Nevada state court, of course Nevada issue preclusion would apply.

But it wasn't.  It was filed in federal court.

What issue preclusion rules apply when the first lawsuit's filed there?

If you're smart, you might think:  "Federal principles, of course."  On the same theory:  predictability, plus uniformity (of federal common law).

That might, in fact, be the right rule.  But, at least in contemporary jurisprudence, whether that's the extant rule is not so clear.

This much is clear:  If the first lawsuit's filed in federal court and it's a federal question case (i.e., the dispute is governed by federal law), federal issue preclusion rules clearly apply.  The Supreme Court has expressly said so.  Every circuit agrees.  End of story.

Judge Callahan's opinion doesn't say whether the first lawsuit at issue here invoked federal question jurisdiction.  That's a serious omission.  Because if it did, then the Ninth Circuit should be applying (and citing) Nevada law -- which would be irrelevant -- but rather, federal common law.

That's the first problem.

But, as it happens, I went back and did some digging, and it at least appears that at least one of the first shareholder derivative lawsuits was indeed a diversity (rather than federal question) case.  (I say "appears" because there's only the briefest reference in the relevant documents; moreover, there are in fact multiple prior derivative lawsuits here, something that only further complicates things.)  If that's the case, then maybe Judge Callahan rightly analyzes the issue pursuant to Nevada law.  Even if the opinion should probably mention expressly why we're applying state law here rather than federal law given that the first lawsuit was filed in federal court.

Except it's not even that easy.  Because it's unclear to me that even in a pure diversity case we should in fact be applying state law.

Recall that issue preclusion is expressly governed by federal law -- the law of the rendering court -- in federal question cases.  Recall too that issue preclusion is governed by state law when the first suit was filed in state court; again, the law of the rendering court.  That even appears to be true (I assume) when the state lawsuit contains a federal claim.  We don't care about the substantive claim for issue preclusion purposes; we simply care about the forum in which the suit was litigated.  Those are the res judicata principles that apply.

Except maybe it's not.

Sure, sometimes the Ninth Circuit has said that's the rule; e.g., that res judicata is governed by federal law (consistent with Supreme Court precedent) when the rendering court was federal.  But, when it's being more careful, the Ninth Circuit has also drawn a distinction between federal question as opposed to diversity cases, saying that issue preclusion should only be governed by federal law when the first lawsuit was a federal question case but should be governed by state law when the first lawsuit was a diversity case.

Why does the Ninth Circuit so hold?  Truth be told, there's probably a little holdover in that regard from some pre-Erie precedent.  But there's also an articulated policy rationale as well:  maybe we want to say that issue preclusion is "substantive" (even though that's not, in fact, the right standard under the Erie doctrine; nonetheless, it's close enough) and hence that the federal court's judgment in a diversity suit should be decided according to state law.

There are, however, tons of problems with such an approach.  (Recall also that we're assuming for purposes of argument that the prior suit here was a straight diversity suit; today's opinion doesn't say, and doesn't explain why it's applying Nevada law.)  For one thing, it seems weird.  Sure, sometimes we apply the forum state's law's; e.g., its statute of limitations.  But doing so with respect to issue preclusion seems strange, especially since this seems more of a "procedural" thing (e.g., the future effect of the judgment) and also because the diversity case might be applying the substantive law of a different state (e.g., here, Delaware) and yet we're applying Nevada substantive law to preclusion.  A mish-mash that's got a lot going against it.

Plus there's a matter of precedent.  Lots of circuits have held that federal preclusion law applies when the first suit was filed in federal court regardless of whether that action was a diversity or federal question case.  To the extent the Ninth Circuit wants to go the other way, we're creating a circuit split and heightening the already-problematic nonuniformity that arises from applying state preclusion law to federal judgments.

Oh, one more thing thing.  What do you do when there are multiple suits?  For example, doing a little more digging, in the present case, it looks like there were many different shareholder derivative suits, including but not limited to one (mentioned by Judge Callahan in footnote one of her opinion) that it appears raised federal question claims -- as is not entirely unusual, since derivative suits often raise federal securities counts.  When there's a federal question suit and a diversity suit, which preclusion law applies?  Why?  Especially when (as it often the case) they get consolidated and resolved at the same time.

Plus, what about prior cases that raise federal question claims and supplemental state law claims?  Do you apply federal or state preclusion law to those?  Or, bizarrely, both?  Now we're just getting weird.

Notice how applying federal law to determine the preclusive effect of all federal judgments avoids this complexity.  One rule.  One ring to rule them all.  Nice, simple, and straightforward.

So that's problem number one.  As well as two.  Judge Callahan's opinion doesn't say why she elects to apply Nevada law.  And there's good reason to think that might not be the right rule when you dig down and think deeply about it.

Let's now discuss problem number three.

Regardless of which law one applies -- and I think it's important (for straightforward reasons) to get this initial question right -- I blanch a little bit at saying that the outcome of a prior suit is res judicata of a subsequent suit when the plaintiffs in those two lawsuits are completely different.

Recall the usual rule from your first-year civil procedure class.  When P1 sues D, that doesn't stop P2 from suing D.  Either through claim or issue preclusion.  Why not, even if the issues are identical?  Because P1 hasn't had his day in court.  Moreover, this isn't just a prudential rule.  It's a matter of core constitutional rights.  The Due Process Clause bars us from precluding P1 in such a setting.

So why does the Ninth Circuit think that fundamental principle doesn't apply here?

You probably didn't go over the "privity" exception much in law school, but that's why.  The Ninth Circuit says that even though P1 and P2 are different shareholders, they're nonetheless in privity -- and hence issue preclusion applies -- because they're (1) both stockholders, and (2) both suing on behalf of the same company.  Since the "corporation" is the nominal party in a derivative suit, Judge Callahan says, it's the "same" party.  Hence the Due Process Clause doesn't apply and you're bound.

Whatchathink?

Admittedly, Judge Callahan's position has a lot going for it.  It is a derivative suit, after all,  Which is indeed technically the "company" filing suit.  So she's right?  Same party?  Or at least in privity?

I get it.  But I'm still troubled.

For one thing, if that's indeed the rule, and the parties are in privity, then isn't the lawsuit barred by claim preclusion as well?  After all, same transaction, same parties.  Why limit yourself to piddly issue preclusion, and instead go for "true" res judicata?

More centrally, I've got a profound problem with saying that the corporation is the "real" party to the suit given that the suit was dismissed.  Remember:  We're trying to figure out the preclusive effect of a judgment in which the court expressly held that the shareholder was not allowed to sue on behalf of the company since he didn't first make a demand.  Well, if he couldn't sue on behalf of the company, then he didn't in fact represent the company, right?  Which means that he's not in privity.  And yet the Ninth Circuit today holds that he did.

Doesn't that seem weird to you?

The first court held that X wasn't allowed to represent the company.  Then Y wants to represent the company.  At which point a second court says that Y can't represent the company since X already represented the company.

Huh?

To me, the analogy to putative class actions seems pretty strong.  Sure, a dude may file a lawsuit that asserts class claims.  But if it's not certified, he does not, in fact, represent the class.  And included in that result is the fact that this prior putative lawsuit doesn't bar future lawsuits -- whether individual or class claims -- via res judicata.  It's an individual claim even though it tried to assert class claims.

What's true for class claims should equally be true for derivative claims, no?

So it seems to me that there's a strong argument that, whatever law applies, policy concerns -- as well as the Due Process Clause -- might well bar a finding of privity in dueling derivative claims like those here.

Judge Callahan's contrary approach also results in the strange types of machinations you see arise in the last part of her opinion.  Because she holds that Party A "represented" the company (even though he wasn't allowed to) in the first derivative suit, and hence is in privity with Party B, issue preclusion will apply (she says) to bar the second suit.  But she concedes, as indeed she must, that under the Due Process clause, that won't be the case if Party A) was an "inadequate representative" of Party B.  That is the Hansberry v. Lee case you may recall from your first year of law school:  the one that involved the racially restrictive covenants.

So now you have the second shareholder representative claiming that the first one was inadequate.  In part relying on the holding of the first court that the first plaintiff was indeed inadequate because he did not make a demand on the company.  All this stuff coming after the first lawsuit was dismissed.

The class action analogy again seems strong to me.  Normally we dispute the adequacy of the putative class representative at the certification stage.  If he's adequate, the lawsuit is certified and is allowed to go forward, and there is now preclusion (both issue and claim).  If he's not, it's not, and there's no future preclusion.  But Judge Callahan says that, in derivative suits, the rule is different.  I'm not sure that's the better principle.  Or practice.  Seems to me that a retrospective assessment of the adequacy of a representative who was never, in fact, allowed to represented the company isn't really helpful.  Or at least is inferior to a contemporary assessment.  Seems to me better to instead say that you're not in privity until you're actually allowed to represent the company.

None of this would stop res judicata if the derivative suit was in fact resolved on the merits.  If the first suit was indeed allowed forward, but simply lost, well, I'll spot you, there may well be privity (and hence issue preclusion) then.  At that point, the plaintiff does, in fact, represent the company, and the "company" can't sue again, even though another shareholder.

But that's not this case.  Here, the lawsuit never went forward.  It was dismissed on procedural grounds and the plaintiff wasn't permitted to represent the company on the merits.  To me, that's inconsistent with a finding of privity.  On whatever law -- federal, Nevada, Delaware, or Venusian -- we might feel like applying.  At least if the law is to make sense.

All of which is to say -- in many, many words -- that there are profound Erie and preclusion issues raised by today's Ninth Circuit opinion.

Abdisalan v. Holder (9th Cir. - Dec. 15, 2014)

Sometimes circuit precedent matters.

Judge Tallman writes a panel opinion in an immigration case that concludes that, under circuit precedent, Ms. Abdisalan's appeal is untimely.  Judge Watford thinks that this decision is unjust, and dissents, arguing that the relevant circuit precedent is distinguishable and was undercut by subsequent circuit precedent.

The case gets taken en banc.  Now no one's bound by circuit precedent.

What's the resulting vote?  11-0.  Including Judge Tallman, who's on the en banc panel.  The bad circuit precedent is overruled, and a new -- fairer-- procedural regime is imposed.

To tell the whole truth, it might not just be circuit precedent that's at work here.  The old regime (i.e., the one that's overruled today) was created by a panel opinion in 2011.  Written by . . . Judge Tallman.  (Joined by Judges Fernandez and Rymer.)

Judge Tallman and the rest of the panel surely had a choice back then.  But now, Judge Tallman (1) sees the error of his ways, and/or (2) sees the handwriting on the wall.  So everyone votes to overrule.

That's how law sometimes evolves, my friends.

Vivid Entertainment v. Fielding (9th Cir. - Dec. 15, 2014)

Jobs continue to flow out of California.  And the judiciary is doing absolutely nothing to stop it.

The jobs to which I refer are jobs that arise from legalized vice.  The industry is simply on the decline in our state.

On the gambling side, we've always been a distant second to Las Vegas, and our state-sponsored gambling took a hit when we finally gave up relying on our own thing and joined the multistate Powerball in 2013.  As for drugs, we were in the forefront for a while in the medical marijuana space, but now neighbors like Oregon and Washington have crushed us, legalizing the thing outright last month.

But at least we still have the porn industry, right?  Surely the San Fernando valley will always be the hub of this time-honored profession?

No.  Not after today.

This morning the Ninth Circuit rejected an appeal that claimed that the recent imposition of a mandatory condom regime (and other ancillary regulations) by Los Angeles was unconstitutional.  Not surprisingly, the fact that performers have to wear condoms in L.A. but not in other cities -- or countries -- has resulted in a wholesale flight from the jurisdiction.

But say goodbye.  The Ninth Circuit holds that the voter-initiated Measure B doesn't violate the First Amendment.  Judge Graber analogizes the law to regulations that require g-strings.  You can still do what you want to do, and express what you want to express.  But you have to do it in a way that covers up a tiny little bit.  (And, yes, I realize that the use of the words "tiny" and "little" as applied to this industry is perhaps a slight misnomer.)

For what it's worth, Judge Kozinski was on this panel as well.  And doesn't write anything witty on the side.

The outflood of vice-related jobs continues.

Peterson v. Bank of America (Cal. Ct. App. - Dec. 11, 2014)

I have -- perhaps surprisingly -- no problem at all with the 965 plaintiff, 3,142-page complaint filed in this case.  None whatsoever.

Yes, that's a lot of plaintiffs.  Yes, that's a hefty complaint.  Definitely not the kind of "short and plain" pleading expressly required on the federal side.

But Justice Bedsworth is right.  It meets the joinder standards.  Countrywide allegedly did the same (or nearly the same) thing with every loan.  It inflated the appraisal with an in-house entity, wrote the loan and then sold it on the secondary market in order to pocket the proceeds, deceived the borrower, and made out like a bandit -- until the scheme (and market) collapsed.

Sure, there are various differences in the stories.  Just like when a drunk driver crashes into a crowd of people, there are different injuries, different amounts of lost wages, different ways they were hit, etc. that we have to sort out.  But that doesn't stop joinder.  Not in criminal cases.  Not in civil cases.  What Countrywide (allegedly) did is not qualitatively different.

Moreover, the practical realities that Justice Bedsworth raises are exactly right.  It does the courts no good to split this one case into 965.  Moreover, it does the plaintiffs affirmative harm.  Economies of scale exist.  One scheduling order, one set of depositions, one trial, etc.  Makes total sense.  Not 965 different filing fees against a consolidated adversary.

Indeed, perhaps most surprising, if anything, I'm not sure that Justice Bedsworth's opinion goes far enough.  He repeatedly characterizes this case as essentially a "mass action" -- and/or very similar to a class action -- and urges the trial court on remand to deal with subclasses and the like.  I'm not sure I agree.  It's not a mass action.  It doesn't have to be -- and maybe even shouldn't be -- a class action.  It is a group of plaintiffs filing a lawsuit.  No different, again, than a group of plaintiffs hit by a drunk driver or injured in a chemical spill or killed in an airplane crash.  They can sue together.  We deal with any complexities arising therefrom with the normal severance, bifurcation, and severance regimes relevant to individual actions.  I think those more than suffice.

Am I necessarily against putting certain groups of plaintiffs more closely together; e.g., letting all the plaintiffs injured in X way or deceived in Y fashion go to trial together, an putting the W and/or Z plaintiffs on a different track?  No.  Do I think the complaint needs to be over 14 inches tall?  No.  It can definitely be much, much shorter.  (Though I totally understand why the plaintiffs, in light of the ever-increasingly-strict pleading requirements, erred on the side of caution here.)

But as for the case being properly filed, it is.  It should go forward.  There's absolutely no reason why Countrywide should be allowed to force the plaintiff to pay 965 filing fees and undertake 965 trials.

Justice Fybel disagrees with Justice Bedsworth, and dissents.  I'm sure that Judge Fybel would disagree with my approach even more.

Read both opinions.  See who you think's right.

Pacific Corporate Group Holdings LLC v. Keck (Cal. Ct. App. - Dec. 12, 2014)

What a jurisdictional mess.

If you think it's easy to figure out if you can appeal -- and/or on what issues -- when the trial court imposes an additur (e.g., grants a conditional new trial) and the defendant doesn't consent, this case will disabuse you of that notion.  Instead, it's an absolute nightmare to figure out, and Justice Aaron goes through the various conflicting opinions and caveats and exceptions that govern this topic and sorts them out as best she sees fit.

My own opinion, upon reading this whole thing, was that a much more straightforward solution was in order:  Just don't allow an appeal until the new trial on damages is over.  On anything.  At all.

That's what we essentially do in the federal system.  And it seems to work out just fine.

I understand that's not an option that the Court of Appeal has given existing state precedent.  But it's something the California Supreme Court might well want to consider.

If only because cases like this one are a sloppy mess of piecemeal review.

People v. Hernandez (Cal. Ct. App. - Dec. 11, 2014)

The police are interrogating a 16-year old murder suspect.  The kid is in a gang, and he's worried that if his gang friends find out that he's said anything to the police, they'll kill him in prison.  The 16-year old tells the officer:

"You’d be surprised all the things they know, man. Everybody [who] snitches, they get killed in prison, sooner or later. They know, they know somehow. They find out. That’s, that’s, that’s how bad those people are. And you say you’re not gonna say nothing. Someone’s gonna find out no matter what. What I just said right now, is gonna get me killed sooner or later. By my own people, man. I know you’re gonna tell someone else."

A legitimate fear, to be sure.

But fear not.  We can trust the police.  Here's what the officer tells the 16-year old:

“[Defendant]: If I talk, nobody’s gonna know?
Detective: It’s gonna be between us, bro. It’s between us right here.
[Defendant]: Promise?
Detective: I promise. It’s with us right here. Okay? I do have to write everything down, eventually, because I gotta type, uh, for, like, ever. But just be honest, brother.”

Don't worry.  It's between us right here.  I promise.

Oh, and I also have a beautiful bridge in Brooklyn I would like you to see.

I'll not further complicate things by adding the stuff about the 16-year old repeatedly saying that he wanted to pee but the officer not letting him.  That'd be piling on.

The Court of Appeal affirms the conviction notwithstanding the promises on the basis of wiggle room in the officer's representations to the kid.  So, yeah, the officer repeatedly promised that whatever was said would stay "between us right here".  But he also said that he would eventually "have to write everything down."  A caveat that I'm certain the 16-year old understood meant that the "promise" had absolutely no significance and that any admission would be played out in front of his gang member friends in a public trial.  Because 16-year olds are incredibly, incredibly smart.  Especially 16-year old gang members.

The Supreme Court allows officers to deliberately lie to suspects.  So that's the law.  But cases like this demonstrate that there's nonetheless a downside -- both public relations and otherwise -- to this permitted (and routine) practice.

Once everyone learns, as they should, that you can't trust a word that a police officer says to you -- even when (as here) they expressly say "I promise" -- that realization may have profound significance for future interactions between the police and the citizenry.

Fiorini v. City Brewing Co. (Cal. Ct. App. - Nov. 6, 2014)

The first line of this opinion reads:  "Ron A. Fiorini (Fiorini), a 23-year-old college student at Fresno Pacific University, was shot to death by police on October 5, 2010. . . ."  So you already know what the suit is about, right?  Particularly timely given the current disputes in Ferguson, New York, etc.

Wrong.  Look again at the title of this post.  And I'll complete the first sentence:  ". . . after drinking two 23.5-ounce cans of Four Loko."

Now you know where it's going, right?  Yep.  "Fiorini’s father, Brett Fiorini (plaintiff), sued City Brewing Company, LLC (City Brewing), the company that brewed, bottled, and labeled Four Loko, for negligence and strict liability."

Seriously?  No way he's going to win that lawsuit, right?  You can't sue Corona for getting you killed (or sunburned), can you?

Well, wait a minute.  Four Loko ain't exactly Corona Light.  Check out the next two sentences of the opinion:  "He alleged a single can of Four Loko contained as much alcohol as five to six 12-ounce cans of beer and as much caffeine as approximately four cans of Coca-Cola. He also alleged that combining alcohol, a depressant, with caffeine and other stimulants created a product that had unreasonably dangerous propensities because it masked the intoxicating effect of the alcohol and increased the risk of violent and other high-risk behavior."

Okay.  So not good.  But it's a legal product.  Not like it's methamphetamine.  Maybe the police are liable.  Maybe the deceased is responsible.  But surely not the brewer, right?

That's indeed what the defendant said.  Next sentence:  "City Brewing moved for judgment on the pleadings, contending that the proximate cause of an alcohol-related injury was the consumption of the intoxicating beverage, not the manufacture and sale of the beverage."

Result?  Next sentence:  "The trial court granted the motion, concluding City Brewing was protected by the civil immunity in California’s dram shop statutes because (1) Four Loko was fit for beverage purposes, and (2) City Brewing furnished the beverage to Fiorini."

Simple enough.  The Court of Appeal will surely affirm, right?  No way we're going to expand liability this far.  Even for a crazy mix of alcohol and caffeine.

Next three paragraphs:

"We must determine whether the civil immunity provided by California’s dram shop statutes protects the manufacturer of Four Loko from liability for injuries to consumers. The immunity applies to persons who furnish alcoholic beverages to the individuals who drink them. Prior cases have interpreted “furnish” to require the defendant to have some control of the alcohol and to take an affirmative step to supply it to the consumer. Here, the complaint does not allege City Brewing (1) exercised any control over the cans of Four Loko after they were delivered to a regional distributor or
(2) took an affirmative step to supply the Four Loko to Fiorini. Therefore, we conclude City Brewing did not “furnish” the beverage to Fiorini and, therefore, the civil immunity in California’s dram shop statutes do not extend to City Brewing.

In addition, judgment on the pleadings cannot be upheld based on the statutory immunity that bars product liability claims for certain inherently unsafe common consumer products. (Civ. Code, § 1714. 45, subd. (a).) That statute lists alcohol as such a product, but plaintiff has alleged Four Loko was unreasonably dangerous due to the combination of high levels of alcohol and stimulants and the risk posed by stimulants that mask the intoxicating effect of the alcohol. The allegations about the interactive effect of Four Loko’s ingredients preclude us from finding, as a matter of law, that Four Loko’s combination of alcohol and stimulants constitutes a “common consumer product” within the meaning of Civil Code section 1714.45, subdivision (a)(2).

Therefore, the judgment must be reversed and the matter remanded to the trial court for further proceedings."

Read the remaining 23 pages for more details.  But the net effect is that plaintiff's lawsuit goes forward.

Fascinating stuff.

In Re Jose O. (Cal. Ct. App. - Dec. 9, 2014)

Jose thinks that he should merely be a dependent of the court, not a delinquent.  But when the court summarizes your problems like this, you're not in an especially favorable situation:

"Jose has struggled to abide by the rules and regulations of his group homes. Jose has failed to obey the law . . . and has shown a pattern of delinquent,high-risk behavior. Jose appears to have issues regarding substance abuse and gangs. Jose poses a risk to himself and to the community and appears to be in need of supervision and immediate consequence. [¶] . . . Jose’s gang status has increased to a point that child welfare services have been ineffective in addressing his needs or the needs of the family. He has been AWOL from group home placement since September 10, 2013. During this time relatives knew of his whereabouts but remained voiceless about assisting in his return. Meanwhile, his criminal and gang issues exacerbated."

I'm not going to even attempt to list all of Jose's assaults, gang-related behavior, etc.  There's only so much (virtual) space on this blog.  Suffice it to say that Jose is, indeed, a delinquent.

Which is not to say that it's entirely Jose's fault.  "[T]here had been “37 referrals for the investigation of child abuse or neglect associated with [Jose’s] family' dating back to late 2002, when Jose was four years old. As a result of these referrals, several child-welfare cases were opened, the most recent resulting in Jose’s placement in the Antioch group home from which he had run away."  He's in part a product of his environment.

But at some point, we start holding you accountable for who you are and what you do.

Here, that's at the age of fifteen.