Calvo Fisher & Jacob LLP v. Lujan (Cal. Ct. App. - Feb. 19, 2015)

Lawyers can make a lot of money.  They can also spend a lot of money.

All of which happens here.

Which lawyer would you rather be?  You could be David Lujan -- a big-time attorney in Guam -- who (among other things) took a case in which he proved to a jury that his client, Junior, was an heir of Larry Hillbroom, who was one of the founders of DHL Worldwide Express and who disappeared while piloting a plane near Saipan.  That victory won his client over $90 million.  For which Lujan received a contingency fee of roughly 38 percent.

Not bad.  Not bad at all.

So that sounds like a pretty good choice.

But with every silver lining there's a cloud.  Eventually, Junior reaches the age of majority and files a lawsuit against Lujan in California, represented by Girardi Keese, that claims that Lujan conspired with others to fraudulently increase his contingent fee from 38 percent to 56 percent.  That's a big-time suit itself, seeking multiple millions.  Plus Lujan eventually wants to file a defamation suit against Girardi Keese (in Guam) for stuff it allegedly said about him in a press conference, and some additional ancillary litigation as well.

Which means Lujan's going to need a lawyer.

Enter Lujan's attorney friend, Eduardo Calvo.  Also in Guam.  Who agrees to represent Lujan in the various actions.

Not for free.  Not at all.

Calvo ends up billing almost $1.5 million to Lujan.  Who only pays a little over $300,000.  These two former friends talk a ton about the various lawsuits -- pretty much every day -- but also fight a ton about the amount of fees that Lujan's being charged.

Hence the future lawsuit between Calvo and Lujan.  Over fees.

Ultimately, that case goes to trial.  And Calvo wins a little under a million bucks -- the full amount he sought.  Plus another $300,000+ in prejudgment interest.

Not bad.  Not bad at all.

But it gets even better.  Then Calvo files a motion for costs, which is (of course) disputed, but he gets nearly all his costs awarded.  More critically, he also files a motion for fees.  Which he also wins.  To the tune of another $1.5 million-plus.

So choosing being Calvo, rather than Lujan, doesn't sound so bad either.

Mind you, both of 'em end up with tons of money.  But both of them also end up with huge, years-long headaches.  Plus one fewer friend.

But need I remind you that we're talking multiple millions of dollars?

Tough choices.

In Re Davis (9th Cir. - Feb. 17, 2015)

I'm not a bankruptcy guy, but I'm nonetheless generally familiar with Chapter 7, as well as Chapter 13, bankruptcies.  Even Chapter 11 (for businesses) rings a bell in my head.  Indeed, I can honestly say that I even know what Chapter 9's about:  municipal bankruptcies.  All of this having never taken the class in law school.

Mind you, I may well have just exhausted in three sentences everything I know about the subject.  But I have still heard of the stuff.

I'll nonetheless forthrightly admit that until I read this opinion, I'd never heard about Chapter 12.  Did not ring even the most subtle of bells.

But now I know.

It's about bankruptcies for farmers.  Presumably giving them an even more favorable break than other types of bankruptcies.

Carolyn Davis gives Chapter 12 a shot in this case after already getting a discharge under Chapter 7.  She's looking for more favorable treatment, but her petition doesn't exactly capture one's heart, since the "family farm" at issue is an 110-acre vineyard in Paso Robles.

The legal problem she has is that her "aggregate debts" exceed the approximately $3.5 million cap that is in Chapter 12.  At least when you count the total amount of her debt that had been previously wiped away under Chapter 7.

So the question for the Ninth Circuit is:  Do those debts count against the cap?

The answer is:  Yes.  Debts are debts.  Even when they've been wiped out in another petition.

So now I know two things about Chapter 12 bankruptcies.

And will almost assuredly die before I know three.

Aghaian v. Minassian (Cal. Ct. App. - Feb. 17, 2015)

You'd ordinarily think that a lawsuit between a citizen of Country X and another citizen of Country X regarding the ownership of property in Country X would be decided in . . . Country X.

Particularly when, as here, one of the defendants resides in Country X and isn't subject to jurisdiction in California.  The fact that a California tribunal wouldn't have the power to change the ownership of the disputed property -- located (again) in Country X -- would seem to lock things down.

Our fancy legal name for that is forum non conveniens.  We generally stay or dismiss lawsuits filed in our forum in that situation in favor of alternative litigation in Country X.

Except when Country X is Iran.

The Court of Appeal notes that Iran might look like a regular civil law country.  But it's exceptionally displeased that -- as is undoubtedly the case -- the judiciary in that country is heavily influenced by the position of the government, and probably doesn't like lawsuits by people (as here) who fled Iran after the overthrow of the Shah and are now trying to get that property back.

Plus there's the fact that the plaintiffs here aren't Muslim, and that one of them (gasp!) is a woman.

There's substantial reason to believe that Iranian courts aren't going to like that.  Especially when those tribunals have an express rule that the testimony of a woman is only worth half that of a man.

Iran can, of course, have whatever type of judiciary it'd like.  But when the remedy there amounts to "no remedy at all," we can refuse to dismiss lawsuits on forum non conveniens grounds.

As the Court of Appeal does here.  Reversing the trial court.

In Re Emily D. (Cal. Ct. App. - Feb. 17, 2015)

"On November 7, 2013 the Department received drug testing results for Elizabeth []. Elizabeth had tested positive for methamphetamine (at an extremely high level), amphetamine and marijuana. . . . When confronted with the test results, Elizabeth again denied methamphetamine use but confided to the worker she had been sleeping with a neighbor who used methamphetamine and that her positive test may have resulted from those encounters."

I'm pretty sure that's not how it works.  So is the Court of Appeal.

People v. Braslaw (Cal. Ct. App. - Jan. 30, 2015)

Here's a cautionary tale.  Drinking and sex.

It's also an interesting factual recitation.  Compare the Court of Appeal's opinion with a contemporary newspaper account of the events.  The Court of Appeal uses "Jane Doe" and initials, whereas the more robust newspaper story uses actual names.  The Court of Appeal mentions that the victim "phoned her then finacee, who is now her domestic partner," whereas the newspaper mentions that the victim is "openly gay" and that her then-fiancee was a "police officer in Las Vegas."  Plus the newspaper has a mug shot and more details about the defendant.

I'm not saying anything normative here.  Just describing the factual recitation.

A post-Valentine's Day reminder that reality isn't all love and chocolates.

People v. Wade (Cal. Ct. App. - Feb. 10, 2015)

The California courts are closed because it's Lincoln's birthday, and the Ninth Circuit (again) has not published anything today.  So it's another lazy California day.  (Thankfully:  It's a sunny 80+ degrees and sunny here in San Diego, and is one of those February days that makes me thankful to be alive -- and in SoCal.)

But just because the California judiciary may be (officially) taking a break doesn't mean I can't tell them that they should take on some extra work.  Which I'll now do:

The California Supreme Court should grant review of this opinion.

I'm not saying that because I believe Justice Kriegler's decision to be necessarily wrong and/or pernicious.  It's just that it's in irreconcilable conflict with an earlier Court of Appeal decision, and the resulting split is jurisprudentially untenable.

Justice Kriegler holds that you illegally carry a firearm "on your person" if the gun is in your backpack.  Hence prison time.  But less than two years ago, Justice Mallano (in an unanimous opinion) held that you're not illegally carrying a knife "on your person" if it's in your backpack.

One of those two opinions, in my view, is wrong.  It's the exact same statutory language.  They're both weapons.  It's inconceivable that the Legislature intended that you be allowed to keep a knife in your backpack but not a gun because the former isn't "on your person" but the latter is.

Most importantly, we need to know what we're allowed to keep in our backpacks.  Whether we spent years in prison shouldn't depend upon what panel we happen to draw in the Court of Appeal or which of these two competing decisions the trial court finds most persuasive.

So the California Supreme Court should take the case up and settle the question.

P.S. - The entire dispute also brought a smile to my face because it reminded me of something my father used to say.  He was fond of retelling the same stories over and over again.  (Whether he knew he was retelling the story to the same audience is an unsettled question.)  One of the classic stories he would often recount related to how law often remained unchanged in Virginia, the state in which he lived and practiced law.  He would often note that the law about concealed weapons in Virginia "still comes from a case about whether a gun in a saddlebag counts."  He always thought that was funny.  He was also right:  there was indeed a case in 1909 about whether a pistol in a saddlebag counted as being carried "about his person" under the statute.  An issue similar to the one the California Court of Appeal is now split.

I thought about my father's oft-retold story when I saw that one of the decisions cited by Justice Kriegler was from Virginia, and related to whether a pistol in a handbag counted as being "on one's person" notwithstanding the "saddlebag rule" established by the Virginia Supreme Court long ago.

The more things change . . . .

Eddie E. v. Superior Court (Cal. Ct. App. - Feb. 11, 2015)

The trial court repeatedly refuses to make findings that might allow a child to stay in the United States, thinking that he'd be better served if he made "a fresh start" by being deported to Juarez, Mexico.  The Court of Appeal, by contrast, thinks that the minor has turned his life around, including graduating from high school with a 4.0 grade point average, and has a contrary view of the merits.

Needless to say, the trial court loses, and the Court of Appeal wins.

In Re Art T. (Cal. Ct. App. - Feb. 11, 2015)

There are some things I don't know.  Like what it says about our species that we live in a world in which 13-year old children join gangs and kill people in cold blood.  Seriously:  I don't know what to make of this.

But there are some (more limited) things that I do know.  Like when a 13-year old boy being interrogated by the police says "Could I have an attorney?", that's a request for counsel under Miranda.

The Court of Appeal understands that as well.

Wilson v. Southern California Edison (Cal. Ct. App. - Feb. 9, 2015)

When I read the first paragraph of this opinion, and noticed that the jury had awarded the plaintiff over $4 million -- including $3 million in punitive damages -- for "allowing uncontrolled stray electrical currents to enter the home" from an electrical substation next door, I thought that this was one of your classic juries who believed that electromagnetic radiation from electrical power lines causes cancer.  A controversial theory, to say that least.

But the case is actually not about something controversial.  There are, in fact, stray electrical currents that can -- and often do -- enter homes from nearby substations.  Currents that can at a minimum be extraordinarily annoying, and potentially worse.

When you read this opinion -- which ends up remanding the case for a new trial (and reversing the award of punitive damages) -- my bet is that you'll think twice before buying a home that has an electrical substation nearby.

And if you'd have thought twice about it already, this one will make you think thrice.

Corbello v. Valli (9th Cir. - Feb. 10, 2015)

"Jersey Boys" = Massive Litigation.

Come Back, Ninth Circuit (9th Cir. - Feb. 2015)

Paul Simon once wrote (and sang):  "Where have you gone, Joe DiMaggio?"  The same might be said for the Ninth Circuit in February 2015.

In the six business days of this month, the Ninth Circuit has written a sum total of one -- count it, one -- published opinion.  Whereas the mass of unpublished opinions continues apace:  50+ and counting.

At this rate, February could be the slowest month in the history of the Ninth Circuit.  Plus don't forget it's only 28 days, and we've got President's Day coming up.

P.S. - Apparently the line about Joe DiMaggio is subject to competing interpretations.  To be clear:  I mean "Where are you?" not "Why do you now stink?"

People v. Cisneros (Cal. Ct. App. - Feb. 9, 2015)

I don't like it when either the defense attorney or the prosecutor screws up.  It's the latter that happens here.

It's a Batson claim that you don't see too often:  a claim that one side used its peremptory challenges to exclude a particular gender; namely, men.  The prosecutor did indeed exclude a lot of men.  When challenged, she came up with a variety of reasons for doing so.  All of which the trial court accepted.

Except for one problem.

With respect to two jurors, all that the prosecutor said was that she preferred the next person in the box.

You can't do that.

By definition, whenever you exclude a juror, you obviously prefer the next person in line.  So that can't count as a sufficient justification.  You've got to give an actual reason why you think that this particular juror is bad for you.  Or at least worse for you.

The prosecutor didn't do that here.  Hence the defendant gets a retrial.

It's not a mistake one should make.  Especially since the defense counsel expressly articulated this exact objection.  At a minimum, having been advised that you've got to do more, the prosecutor should have done so.  She didn't.

At least after this published opinion, hopefully it's not a mistake that will be oft repeated.

Andrew V. v. Superior Court (Cal. Ct. App. - Feb. 9, 2015)

I'm glad the Court of Appeal decided to (belatedly) publish this opinion.  It's important.  I'm also impressed how quickly it resolved the writ petition.  For good reason.

Mother files a motion to move Children to Washington, and Father opposes it.  At the hearing, however, the child custody investigator isn't available to testify, and Father's counsel is also sick, so isn't there.  As a result, the hearing gets continued.

But the trial court nonetheless grants a "temporary" move-away order that lets Mother move Children to Washington in the interim.  Without a full hearing.  Without Father's counsel.  And without staying that order for 30 days as required by California law.

The Court of Appeal grants a peremptory writ and reverses.  You can't do that.

It's also done extraordinarily quickly.  The trial court order was on January 14, 2015.  Father filed his writ on January 20.  The Court of Appeal issues a Palma notice the very same day.  Three days later, the Court of Appeal issues its opinion reversing.  Publishing that previously-unpublished opinion earlier today.

Well done.

The only thing I'll add, however, is that the laudatory speed of the Court of Appeal in reversing the trial court's move-away order was far from matched by the speed of the trial court in adjudicating this order.  Mother got a promotion and was transferred to Washington in early 2014.  She filed her motion for a move-away order in July 2014.  A child custody investigation was ordered in August.  Which took until December 2014 to complete.  Then a hearing is scheduled for January 2015.  Which (as described above) doesn't fully resolve the issue, so the trial court continues the hearing until March 2015.

That's nearly a full year after Mother asks for the move-away order.  So she and the children are forced to stay in California the whole time.

It's clearly important to get these things right.  But it's also important to get these things decided quickly.  For the welfare of the parents as well as the children.  People shouldn't be in limbo for eons.  When (as appears here) there's a seemingly legitimate reason for a move, the court should act as quickly as it can.  Because a delay isn't in anyone's interest.

And if that means appointing more family law judges, or more custody investigators, or getting them (and/or the parties) to do their work a bit faster, so be it.

Good job by a busy Court of Appeal.  Let's hope this practice gets replicated by our busy trial courts.

Ram v. OneWest Bank (Cal. Ct. App. - Feb. 6, 2015)

Here's yet another "wrongful foreclosure" case.  Like so many, many others filed in the wake of the Great Recession.

Its fate is the same as nearly all of them.  Dismissed by the trial court.  Affirmed by the Court of Appeal.

The only wrinkle in this one is that the panel disagrees on precisely why plaintiffs lose.  But everyone agrees they do, indeed, lose.

I'm not exactly sure who's prosecuting these appeals, or the underlying business model, when (as here) the plaintiffs are represented by counsel.  Sure, you can get money from the plaintiffs themselves, but presumably not a lot, since they're people who can't even pay their mortgages.  Of course you can alternatively take a piece of the pie, but as I said, there's pretty much never -- never ever -- any actual pie, so I'm not sure how that works as well.

Maybe you're just a true believer.  Surely there are indeed things about the whole "robosigning" process, and other unique aspects of the whole MERS arrangement, that might make you perceive that things are sleazy and hence that you might potentially prevail at trial.

But I think the judicial attitude in pretty much every single one of these cases (including this one) is basically "Hey, you didn't pay your mortgage, and you lost your home.  That's the way things things work.  You can't file a lawsuit based on 'ticky-tack' violations if you didn't actually pay."

Whether they say so or not.

People v. Rodriguez (Cal. Ct. App. - Feb. 5, 2015)

Read this opinion (and dissent), which involves a three-strike life sentence for having five tiny bindles of heroin for a guy who's now 59 years old.  He's trying to get resentenced under Prop. 36, and he's eligible to apply because he didn't commit any disqualifying offense.

The trial court, however, refuses to grant him relief.  It thinks he's still "dangerous" because he might commit future crimes upon release.  Even though even the state says that Mr. Rodriguez has been a "model prisoner," it -- and the trial court -- are worried that he might continue to engage in things like petty theft if he's released.  The Court of Appeal affirms.

I'll let the competing opinions speak for themselves.  I'll simply add that I'm fairly confident that the vast majority of the people who voted for Prop. 36 intended that prisoners like Mr. Rodriguez should not be bound to their mandatory 25-to-life sentences.

But maybe I'm just saying that because Mr. Rodriguez's history compares favorably to pretty much every single prisoner in The Shawshank Redemption.

National Union Fire. Ins. Co. v. Tokio Marine (Cal. Ct. App. - Feb. 4, 2015)

It's hard to write something timely about Ninth Circuit and California appellate decisions on days like today; e.g., when the Ninth Circuit publishes nothing in February thus far (despite 30+ unpublished opinions) and when the Court of Appeal only publishes a single case (thus far) today.  Slim pickings.

Rather than discussing the merits of today's Court of Appeal opinion by Judge Goodman (sitting by designation from L.A.), I thought I'd just mention that I was struck by the caption.  The title of the case is National Union Fire Ins. Co. v. Tokio Marine.  A fight between two insurance companies.

What's neat about that is that I happen to recall that there's a famous Second Circuit case with that exact same name -- a leading appellate case about reformation -- way back in 1937.

So these two entities (or their predecessors) have literally been fighting since before World War II.

Different case, of course.  But a memorable name.

People v. Alexander (Cal. Ct. App. - Jan. 16, 2015)

There's only one published opinion today.  It's about whether the California Department of Resources Recycling and Recovery has the authority to enforce the Architectural Paint Recovery Program.

So ahead and read that one if you'd like.  Or, alternatively, you can watch paint dry.

For a slightly more exciting case, you could instead read an opinion from a couple of weeks ago that amply demonstrates that clients are sometimes their own worst enemy.

Ashlan Park Center v. Crow (Cal. Ct. App. - Feb. 2, 2015)

If this case had come out any other way, I'd have fallen on the floor in disbelief.

The Court of Appeal holds that when a corporation (or corporations) own a shopping center and the economy turns south, that does not constitute "reasonable cause and circumstances beyond [their] control" for not timely paying property taxes.  Hence there's no waiver of statutory penalties.

Duh.

This lawsuit had no probability of success from the get-go.

Jackson v. AEG Live (Cal. Ct. App. - Jan. 30, 2015)

Fittingly, the published opinions for January end with what's likely the highest-value appeal of the month (and perhaps the year):  Katherine Jackson's appeal seeking to hold AEG Live accountable for Michael Jackson's death.

The trial court granted summary judgment for the defendant on various claims, and then at trial, the jury found against Ms. Jackson.  The trial court did not disturb the verdict.

Today, the Court of Appeal affirms.

I'm sure that Ms. Jackson can afford to make an effort to get the California Supreme Court to review the case.

But it won't work.  This one's over.

Wright v. State of California (Cal. Ct. App. - Jan. 30, 2015)

There are actually people (e.g., guards) who voluntarily elect to pay market rates to live on the grounds of San Quentin prison?!

Interesting lifestyle choice.

I bet it makes for a fascinating conversation if you ever meet someone in a bar and take 'em home for the evening.