American Rivers v. American Petroleum Inst. (9th Cir. - Feb. 21, 2023)

It's never a good sign when the caption and official summary of a Ninth Circuit opinion goes on for 13 single-spaced pages. Indeed, the actual opinion itself isn't much longer than that.

Fortunately, I can save you the trouble of reading the whole thing. Just skip to page 14. Judge Friedland there tells you all that you basically need to know about today's holding:

"When a federal regulation is challenged in court, the promulgating agency may ask the court to remand the regulation to the agency for an opportunity to reevaluate it and correct any errors. Courts often grant such voluntary remands without ruling on the lawfulness of the challenged regulation. The question we face today is whether a court granting a voluntary remand may also vacate the regulation without first holding it unlawful, as the district court did here. We hold that courts lack the authority to do so, and we therefore reverse."

Sure, you can wade through the whole thing if you'd like. But that's a very good articulation of the basic deal.

People v. Venable (Cal. Ct. App. - Feb. 17, 2023)

I'm going to have you read today's Court of Appeal opinion exactly the way I read it, even though that'll take slightly more time.

Here's how the opinion begins:

"Bullets fired from a small white car killed one victim and wounded another. Both victims were members or associates of the Westside Projects (Projects) gang. Months later, when the police arrested a known informant for an unrelated offense, he offered to give them information about the shooting. He told the police—and eventually testified— defendant and appellant Travon Rashad Venable, Sr. drove the car used in the shooting and Elgin Johnson was the shooter. Both Venable and Johnson were members of the California Gardens Crips (California Gardens) gang, a rival of the Projects.

A jury found Venable guilty of first degree murder (Pen. Code, § 187, unlabeled statutory citations refer to this code) and attempted murder (§§ 187, 664, subd. (a)). 2 The jury also found true, on each count, a gang enhancement (§ 186.22, subd. (b)) and a gang-related firearm enhancement (§ 12022.53, subds. (d), (e)). In a bifurcated proceeding, after defendant waived a jury trial, the judge found Venable had one prior serious felony conviction (§ 667, subd. (a)) and one “strike” prior (§§ 667, subds. (b)-(i), 1170.12). The judge sentenced Venable to a total of 129 years to life.

On appeal, Venable argued: (1) The trial judge violated his speedy trial rights by repeatedly continuing the trial to accommodate counsel for his then-codefendant Johnson. (2) The trial judge erred by admitting a rap video in which Venable appeared. (3) The trial judge erred by giving CALCRIM No. 315, which required the jury to consider a witness’s level of certainty when evaluating an identification by that witness. (4) The jury found Venable guilty of attempted murder, not willful, deliberate, and premeditated attempted murder. The People conceded this point. (5) The trial judge erred by sentencing Venable on both the firearm enhancements and the gang enhancements. The People conceded this point. (6) Venable is entitled to a remand so the trial judge can consider striking the prior serious felony conviction enhancement under newly enacted legislation. The People conceded this point. (7) Venable is entitled to a retrial for the gang allegations to be tried separately under newly enacted legislation. (8) The gang enhancements and the gang-related firearm enhancements must be reversed because the jury was not instructed in accordance with newly enacted legislation. The People conceded this point. (9) Venable is entitled to a remand for the trial judge to consider reducing the firearm enhancements under newly enacted legislation. The People conceded this point.

We initially found no errors other than those conceded by the People. (People v. Venable (Aug. 22, 2022, E071681) [nonpub. opn].) However, the Supreme Court granted review, transferred the matter back to us, and directed us to vacate our opinion and reconsider the cause in light of the newly effective Evidence Code section 352.2, enacted by Assembly Bill No. 2799 (Stats. 2022, ch. 973) (AB 2799).

Evidence Code section 352.2 requires trial judges to consider specific factors before admitting evidence of a form of creative expression—which explicitly includes rap—in a criminal proceeding to avoid injecting racial bias and improper consideration of criminal propensity. It’s uncontested the trial judge did not consider those additional factors before admitting a rap video in Venable’s trial and that the trial, as a result, didn’t comply with the new requirements for admission. The question is whether these new requirements apply retroactively to cases like Venable’s, which are pending on appeal at the time of their enactment. (In re Estrada (1965) 63 Cal.2d 740 (Estrada).) We conclude . . . "

Given this description, I was supremely confident of how the Court of Appeal would come out. The conviction was affirmed to begin with. It's a gang murder case. The Supreme Court granted review and transferred, but only to see whether a change in evidence rules is retroactive. I was sure that the Court of Appeal was going to hold that evidentiary changes are not retroactive and hence, once again, affirm.

I was wrong.

The Court of Appeal instead unanimously holds that the evidence changes are retroactive and, on that basis, reverses and remand for a new trial.

I'm super surprised. Super. Maybe there are some other cases that hold that changes in evidentiary rules are retroactive. But if there are, I can tell you this much: I don't know about 'em. I'd have thought that the rules of evidence at trial are the relevant rules of evidence, and that if evidence was admissible at the time, then it doesn't become inadmissible simply because the rules of evidence changed after the trial was over.

But the Court of Appeal says here that that's precisely what happens.

It's weird to me. Mind you, I understand the reasoning. As well as the politics and atmospherics. Here, the Legislature changed the Evidence Code to make it harder to introduce rap lyrics at trial. For various reasons: to protect free speech, to avoid prejudice, etc. That's all fine and good; the Legislature can make that call.

But the evidence here was properly admitted under the old rules, which just balanced probative value versus prejudice. Sure, that might come out the other way under the new rules. And it's certainly true that the trial court here didn't evaluate the evidence under the new rules. Because they didn't exist yet.

It just seems weird to me to say that a new trial is required because evidence was inadmissible under new rules that didn't yet exist and that the trial court wasn't required to consider. It'd be one thing if the new rules were constitutional or the like, or necessary for a fair trial. Those it makes sense to hold as retroactive. But that's not the case here. Plenty of trials went forward under the regular old "probative vs. prejudice" balancing test, and we're not reversing any of those results. But for cases on appeal, we say that a new trial's required because an "error" was made that couldn't not have been made since the new rules -- the new balancing test -- didn't yet exist.

Strange, no?

Take a different example. Imagine that certain evidence suddenly becomes inadmissible after a trial is over; say, because the Legislature creates a new privilege (maybe "Patron/Supermarket Cashier"). If a defendant confesses to a cashier and that evidence is admitted at trial, does that conviction get reversed on appeal given the new evidentiary rule? I'd have thought before today that the answer was clearly "No." Even though the new rule was "ameliorative" in the sense that it helped the defendant and was meant to advance appreciable social interests. Under the reasoning of today's opinion, by contrast, the answer seems far less clear, and might well be "Yes."

The retroactivity cases that the Court of Appeal cites here are all cases that make a fair amount of sense to me: that things like the availability of pretrial division and sentencing reductions and the like are all applicable to cases still on appeal. But evidentiary rules just seem to me different. At least when, as here, they're mere Legislative enactments and not constitutionally based or something like that.

Sure, the Legislature could expressly make those new evidentiary rules retroactive if they want. But that's not what happened here. The Legislature said nothing. Given that silence, I'd think that the very strong presumption is that the evidence rules at trial remain the evidence rules on appeal.

But apparently the Court of Appeal thinks otherwise.

Anyway, super interesting result, and one that I definitely didn't expect when I first saw the issue teed up on appeal.

Duarte v. City of Stockton (9th Cir. - Feb. 16, 2023)

You can see why the district court might have gotten this one wrong. In part, anyway.

There's a rule is that you can't file a civil suit against the police for your arrest if you were convicted. Plaintiff pleads nolo contendre ("no contest"), which is essentially the equivalent of a guilty plea. But California allows the trial court to hold pleas in abeyance, which is what the trial court did, and after six months, when the plaintiff had completed the required community service and not violated any laws, the charges were dismissed in the interests of justice.

Does that count as essentially a conviction and hence bar the civil suit?

A couple of circuits have said "Yes." Because basically the required community service and six months of not doing anything wrong was the guy's "sentence". But even more circuits have said "No." It doesn't count as a finding of guilt and sentence because it was was, in fact, not a finding of guilt or sentence. It was a dismissal.

The district court agreed with the couple of "Yes" circuits. The Ninth Circuit agreed with the four circuits that said "No," so reversed.

Fair enough. Split opinions in the Court of Appeals, so the trial court picking what turns out to be the wrong side of this debate is hardly a major slam.

The weird part, however, is the second basis for the Ninth Circuit's reversal.

The district court also dismissed the lawsuit against the City of Stockton on the ground that the city wasn't a "person" subject to Section 1983 liability. But there's an on-point Ninth Circuit decision -- lots of 'em, in fact -- that holds exactly to the contrary. The trial court finds persuasive a concurrence by a single Ninth Circuit judge that says that the rule should be otherwise. But as the panel here notes quite persuasively, a single judge can't overrule Ninth Circuit precedent -- and certainly can't do so merely in a concurrence. 

So how the district court got that one wrong is much less easy to explain.

In re Hunter W. (Cal. Ct. App. - Feb. 15, 2023)

No child is perfect; each has their own challenges. If you have a child, I strongly suspect that there are things that the child has done that make you nervous, or wish you could change, or something like that.

Some children, however, bring bigger challenges than others. So, sometimes, a brief comparison may be helpful. If only to help the parent recognize that, yeah, things could be a lot, lot worse.

So, for example, with Hunter W., down here in San Diego:

"In 2015, Hunter and another minor got into a fight over the purchase of cigarettes. The fight escalated and Hunter, who was 13 years old at the time, told the victim he was going to kill him. Hunter pulled out a knife, stabbed the victim three times, left the knife in the victim, and fled the scene. Two days later, Hunter’s mother brought him to the police station, where Hunter admitted to stabbing the victim . . . As a result of the stabbing, the District Attorney filed a juvenile wardship petition alleging Hunter fell within the court’s jurisdiction under Welfare and Institutions Code section 602.

Before the petition was adjudicated, the District Attorney filed a second petition alleging Hunter had driven without a license (Veh. Code, § 12500, subd. (a)) and under the influence of drugs (id., § 23152, subd. (a)). Hunter had taken his mother’s car and crashed it into a tree. The car caught fire and was destroyed. Hunter told the responding officers at the scene what happened, and admitted he was under the influence of Xanax and marijuana that he obtained illegally."

Yeah. That's a challenge. Especially since Hunter "did not perform well on probation, and after multiple violations . . . the court revoked probation and the parties stipulated to placement in the DJJ. The court then set the maximum term of confinement at seven years."

In short: Being a parent (or kid) is tough, but it could be worse. Much worse. 

 

Attenello v. Basilious (App. Div. Sup. Ct. - Feb. 14, 2023)

Want to be a landlord in California? Think that it'll be fairly straightforward, and that you can rely on the forms the California Association of Realtors provides?

Think again.

SDCCU v. CEFCU (9th Cir. - Feb. 10, 2023)

It's been a slow week. One case today from the Court of Appeal, two opinions yesterday, and none the day before. The Ninth Circuit has been similarly slow; two opinions on Monday and two today, but nothing at all on Tuesday, Wednesday and Thursday.

Unless you're a trademark scholar with a keen Article III focus, I doubt that today's opinion will especially wet your whistle. Nonetheless, to be honest, it's one of the most well-written of the opinions I've read from Judge Bea in quite a while. Definitely worthy of a read-- if only from the limited perspective of how to craft things in a readable and coherent manner -- even if you're not especially fascinated by the subject matter.

As a bonus, it comes to what I think is the correct result. The trial court granted a motion for summary judgment holding that one side didn't infringe the trademark of the other side. Given that fact, there was no reason for a subsequent trial as to whether that trademark was valid. Seems right to me.

Or, as Judge Bea puts it: "After a party obtains declaratory relief which decrees that it is not infringing a trademark, does it retain Article III standing to invalidate that mark? That is the central question presented in these appeals, and we answer it: No."

There are lots of other subsidiary holdings in the opinion as well -- e.g., with respect to whether there was personal jurisdiction -- and all those seem right to me as well. On the whole, 42 single-spaced pages of pretty darn good stuff.

I must admit that the whole underlying enterprise seemed fairly silly to me, however. (Though that's not Judge Bea's fault.) A bank in Illinois (that has some branches of a related bank in the San Francisco area) has a particular trademark -- “CEFCU. NOT A BANK. BETTER." -- and feels like a bank in San Diego had a related trademark ("“IT’S NOT BIG BANK BANKING. IT’S BETTER.”) that's a little to close to theirs. So the Illinois bank tries to cancel the trademark of the San Diego bank, and the San Diego bank sues in federal court in California to declare that it's not infringing the other bank's trademark and that the Illinois' bank's trademark is invalid in any event. [Note: An informed reader points out to me that the parties are both credit unions, which are technically not "banks". True enough. I'll keep the term bank, which I used initially, as (admittedly technically inaccurate) shorthand.]

Mind you: These banks do no compete with each other. But they nonetheless decide to spend a ton -- and I mean, a ton -- of money on federal litigation about this whole thing.

That would most definitely not be my call were I running either bank. Honestly. Such a waste.

There are probably also some questionable strategic choices made in the midst of the litigation as well. For example, the Illinois bank elected not to context the MSJ filed by the San Diego bank that contended that there was no infringement of the other's trademark. Probably the wrong call, or at least a call that one might have wanted to make way earlier in the litigation. Similarly, even after winning its MSJ, at which point it doesn't really have to be worried about being sued at all, the San Diego bank elected to waste tons of money to go to trial to try to establish that the trademark that it didn't infringe was invalid anyway. Again, not a great use of resources. And one that, in any event, gets reversed on appeal anyway, for lack of Article III standing.

Plus there are the various contentions on appeal, including one that Judge Bea describes -- entirely accurately -- as "near-frivolous." Not a good look.

Anyway, there you have it. Money that's largely flushed down the toilet.

Bad for the banks (and their customers). Particularly bad since they're both credit unions, which are (at least in theory) owned by the depositors.

Good for lawyers, though. We're happy to take your money pretty much whenever you'd like.

JPV v. Koetting (Cal. Ct. App. - Feb. 7, 2023)

There's some useful stuff in this opinion about alter ego liability and adding nonparties as judgment debtors, so on the doctrinal front, it's worthy of a read.

As for extra-legal lessons learned, I might suggest that one of them might be that if you're planning on getting together with a partner to make usurious loans to poor people over the Internet, it should perhaps not come as a surprise to you when your partner eventually tries 9allegedly) to steal from you; e.g., by emptying a $1.45 million bank account so you can't collect on your judgment against him.

One's character tends not to change over time, IMHO.

People v. Fernandez (Cal. Ct. App. - Feb. 1, 2023)

I've attempted in vain to think of a legal issue more depressing than the one squarely presented by the competing opinions in this case, which solely involves the following issue:

Was the evidence here sufficient to support an inference that the defendant intended to kill his 13 week old baby when he tortured him?

Everyone admits the baby was (allegedly) killed. Everyone admits that the baby was (allegedly) tortured. The only question is whether the evidence is sufficient, at this stage, to prove that the father intended to kill the baby during the torture that was inflicted upon him.

Justice Raphael, joined by Justice Menetrez, thinks it was. He says (in summary) that "It is rational to infer that a person who, over a few weeks, struck an infant in ways that broke most of his ribs, fractured his skull, wounded his brain recurrently, and induced head-to-toe bruises “could not have been unaware” that death could result from the blows. This is a rational ground for concluding that Fernandez intended to kill Marco when torturing him." (citations omitted)

Justice Ramirez, in dissent, thinks it wasn't. He says (in summary) that although "[t]here is no debate defendant tortured the baby with continuing pain-inducing acts," the "the only act described in evidence [that resulted in the baby's death] was the act of throwing the child onto a bed, after which the child fell or rolled onto the floor," and the fact that the child suffered horrific other injuries didn't establish that there was an intent to kill the baby at the time of those other injuries.

I'll not recount the horrible, horrible injuries to the baby. As I said, they are incredibly depressing. It's a 13-week infant, after all. You can read all about them in the opinion, if you'd like.

But I don't recommend it. It's stuff difficult to forget. (Especially alongside the dissent's comparison to other -- even more egregious cases -- involving other alleged torture-related deaths of infants.)

People v. Cress (Cal. Ct. App. - Feb. 2, 2023)

This amendment says, in its entirety:

"The opinion filed in this matter on January 9, 2023 is modified as follows: On page 1, following “Judith C. Clark, Judge,” strike the sentence in parenthesis that reads, “(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)” Except for this modification, the opinion remains unchanged. This modification does not effect the a change in judgment. CERTIFIED FOR PUBLICATION."

Whoops. Sorry about that, Judge Clark. (Who's not only still on the bench in Riverside, but who was in fact recently elected as the presiding judge over there.)

Travis v. Brand (Cal. Supreme Ct. - Jan. 30, 2022)

Ordinarily, I could easily see why appellants prosecuted this petition for review in the California Supreme Court. They lost, after all, in the Court of Appeal. Moreover, they not only persuaded the Cal Supremes to grant review, but also won on the merits.

I nonetheless think that it was probably the wrong strategic decision. A pyrrhic win.

Two citizens file a lawsuit under the Political Reform Act regarding a particular initiative in Redondo Beach. After a five day bench trial, they lose. The trial court awards defendants their costs and attorney's fees, finding that the lawsuit "was frivolous, unreasonable and groundless." The trial court also finds that the two citizen plaintiffs were mere "shills" for a variety of (rich) nonparties, and holds those nonparties liable for the attorney fee award as well.

Plaintiffs and the nonparties appeal. The Court of Appeal finds in favor of the nonparties, holding that they can't be found liable for the award since they weren't parties. Due process and all. That's final at this point; no one appeals.

As for the actual two plaintiffs, however, the Court of Appeal affirms the fee award. There were two statutory bases for the trial court's fee award: Government Code 91003 and CCP 1021.5. The Court of Appeal holds that it doesn't have to decide anything about the latter because the former is sufficient to affirm. Plaintiffs argued that fee-shifting under the Political Reform Act should be asymmetrical, with awards (as here) to the defendants only if the lawsuit was frivolous, but the Court of Appeal held that it wasn't, and that whomever was the prevailing party -- here, defendants -- could be awarded fees.

Plaintiffs petitioned for review, the California Supreme Court granted it, and in today's opinion, agrees with the plaintiffs that the Court of Appeal applied the wrong legal standard since (on the merits) 91003 is indeed asymmetric, and on that basis reversed and remanded.

So Plaintiffs win. 

Seemingly, anyway.

The thing is, though, I don't think they really do. First of all, they're almost certain to lose on remand. The trial court found that the lawsuit was "frivolous, unreasonable and groundless." My bet is that the Court of Appeal, on remand, will affirm. Which means that even under the Supreme Court's new legal standard, Plaintiffs will still be liable for fees.

And even if that's not true, there's still the alternative basis of the trial court's holding: 1021.5. Plaintiffs might well still be liable under that theory as well.

So Plaintiffs had to spend the time, effort and money to (1) file a (quite uncertain) petition for review, (2) once it was granted, file briefs on the merits, and argue the case, and (3) now, on remand, have to pay further costs and fees to argue the thing again in the Court of Appeal. Plus whatever ancillary proceedings (another petition for review?!) anyone might want to file.

That's a lot of scratch. Likely for nothing, since the outcome will likely not change.

Now, look, it's a big fee award: nearly $900,000. So, normally, one might perhaps make the call that even a low probability of reversing a $900,00 award is worth it. (Though if you're fees on appeal are something like $250,000, or if you bear the risk of adding another $200,000 to the fee award for the defendants' costs and fees on appeal, that might well change your calculus, no?)

But the two plaintiffs here are just two everyday Redondo Beach residents. Plaintiffs are Arnette Travis and Chris Voisey. Do you really think defendants are going to get any actual money out of these people at the end of the day? Much less $900,000?

I don't. They'll go bankrupt, or just avoid paying. Spending an actual $200,000 fees -- or whatever -- to try to get out of a practically nonenforceable judgment for $900,000 generally seems irrational to me. Not a particularly good use of resources.

Now, I get it: the two citizens here are (allegedly) mere shills for larger (much richer) people -- the nonparties who were originally held jointly liable for the fees. But the rich nonparties are already off the hook after the Court of Appeal's holding. And, sure, you might feel sort of bad leaving your two (alleged) shills holding the bag after you got 'em spanked for a $900,000 fee award.

Still. Dumping $200,000+ down the drain to likely get the exact same fee award (or more!) on remand likely seems unworth it. Just tell the two people that you'll help 'em go BK and/or pay whatever blood the defendants successfully get from the plaintiffs' respective stones. If anything. That might be a more practically effective solution.

But whatever. I get it. Rich people have money. They can spend it on whatever they like. And if they choose to spend it on lawyers, all the better for us, right?

That just might not be the economically rational call.

Or even close to one.

People v. Bolanos (Cal. Ct. App. - Jan. 27, 2023)

Carolos Bolanos did a lot of bad stuff, for which he was (for the most part) validly convicted. So bad that he was sentenced to life in prison without the possibility of parole. With the sole exception of a relatively minor conviction (in the scheme of things) for car theft, the Court of Appeal affirms.

So this 22-year old will spend the rest of his life in prison, for forcible sexual offenses against two victims and defrauding a third.

Whether that's a just sentence is a separate issue. The only question I have is about a single line in Justice Snauffer's opinion, about the fraud/theft office. Page four reads:

"Victim three agreed to sell her car to Maritza Martinez. At the last minute, victim three was told Bolanos would meet her instead. Bolanos showed up, test drove the car, and then victim three signed over the “pink slip ….” After signing over the “pink slip,” Bolanos handed victim three fake money concealed in an envelope. Victim three exited the car, ultimately realized the money was fake, and Bolanos drove off the with car."

The third sentence is a tiny bit confusing, though I think I understand it (maybe). It says that "Bolanos handed victim three fake money concealed in an envelope." At first, I thought that Justice Snauffer meant to say that the victim was handed three fake money orders, with the last word inadvertently omitted. But, no, it's "victim three" and "fake money." But I'm not a thousand percent sure what the Court of Appeal means by "fake money." Does that mean counterfeit money -- which is the term we usually use for that sort of thing? Or something else?

I looked it up, and it seems like the Court of Appeal has used the term "fake money" on a least a few occasions previously. So maybe it's just an alternative term for "counterfeit money." 

Though maybe it means movie prop money, or something like that? Who knows.

Still, I get it. Not actual money. Fake.

A minor offense in the scheme of things for which Mr. Bolanos was convicted, but still. Illegal.

Preciado v. Freightliner Custom Chassis Corp. (Cal. Ct. App. - Jan. 24, 2023)

Sometimes lawyers win cases because the case is good, even if the lawyer's not.

Sometimes lawyers loses cases because the case is bad, even though the lawyer's good.

These are simply the facts of life. The merits matter. A ton.

But, sometimes, lawyers lose cases even though the case is good. In my mind, this is one of those cases.

It's a fairly high-value personal injury case. There's a bus accident on I-15 that kills one of the plaintiffs and injures another. These two plaintiffs sue several different defendants in San Diego for that accident, including but not limited to the manufacturer of the bus chassis. Defendant moves to quash, saying that it's a Delaware company with its principal place of business in South Carolina and doesn't have the required minimum contacts with California sufficient to create personal jurisdiction.

The trial court grants the motion to quash, and the Court of Appeal affirms.

My view, by contrast, is that there's very likely personal jurisdiction in California.

The weird thing is that these two statements are not necessarily inconsistent with each other.

Justice Irion's opinion is pretty darn good, honestly, in setting forth and evaluating the often-difficult issues that arise when dealing with specific jurisdiction disputes like this one. Okay, maybe the reader could have done without the page and a half about general personal jurisdiction, because obviously that doesn't exist, and no one (as far as I can tell, anyway) is even arguing that it does. But whatever. That's a nit. On the merits, I like a ton of what Justice Irion says.

Now, I think Justice Irion may rely in part slightly too much on the Supreme Court's opinion in Ford Motor Company than is due. Yes, Ford Motor Company tells us what's sufficient for jurisdiction. But it doesn't demark the boundaries of what's insufficient. For that, at least for "stream of commerce" cases like the one at issue here, you've got to go back to the Supreme Court's opinion in Asahi. And that's one's a 4-4-1 opinion. Justice Irion cites Justice O'Connor's 4-vote opinion in Asahi, and rightly so; if the defendant here did any one of the things listed therein, then, yep, there's personal jurisdiction. But 4 justices agreed with Justice Brennan that knowledge of your product ending up in the forum state -- which virtually certainly existed here -- was good enough even without the "additional conduct" listed by O'Connor, and Justice Steven says that knowledge plus a certain number of continuous sales gets his vote too, resulting (as there) in a majority on that score. So the opinion is a little quick to jump to the belief that you've got to prove something more than knowledge; I'm not sure that's (entirely) right.

But Justice Irion is right that if you've got one of the types of additional conduct, then there's personal jurisdiction, but that (as Ford Motor Company and BMS suggest) you've got to make the appropriate focus on which types of products you're talking about. It makes a difference if it's the exact same model or chassis type that's in the forum, or an entirely dissimilar model, or something in between.

And on that point, the Court of Appeal's opinion is right: we don't have much here. Because while the plaintiff's attorney has submitted a variety of printouts from the Internet about what the defendant says about the extent of its sales, there are a lot of details we don't know. Is it the exact same type of chassis? Do the other types of chassis that the defendant sell have similar problems? Sure, there are apparently service stations in California, but what precisely is the defendant's relationship with them, and do they serve this type (or a related type) of chassis? What's the scoop.

We don't know. Because (1) plaintiff doesn't know yet, since it hasn't conducted discovery, and (2) plaintiff didn't either (a) propound discovery on these jurisdictional issues before the motion to quash was heard (despite propounding discovery on the merits), or (b) give the court details in its opposition to the motion to dismiss about precisely what discovery it was going to seek and what it thought might be thereby revealed that would compel denial of defendant's motion.

That's a problem. I strongly, strongly suspect that if counsel for plaintiff had been specific, the trial court and/or the Court of Appeal would have allowed jurisdictional discovery. Moreover, in my view, I very much believe that this discovery -- properly argued -- would have demonstrated that the defendant was, indeed, subject to jurisdiction in California.

But that didn't happen. Not because the facts were bad. I bet they were good. It's just that the lawyer for the plaintiff didn't obtain and submit them -- or even submit a concrete plan to the court for getting 'em.

Two lessons, I think, can be derived from this opinion. One specific, one general.

First, if you're a plaintiff and want jurisdictional discovery, be specific. Submit particular discovery requests that you want to propound and say what you think you're going to discover from them. Or, better yet, go ahead and propound 'em before the motion to dismiss is heard (indeed, even before you file your opposition). The Court of Appeal and trial court both seemed to put a fair amount of weight on the fact that the plaintiff here propounded tons of discovery before the hearing on the motion to quash but all about the merits, not jurisdiction. That's a bad look. It resulted here, in my view, in losing a motion -- in a high-value case, no less -- that should have been won.

Second, more generally, even if you're a super good lawyer, know your respective lane. By all accounts, counsel for plaintiff here is a fairly sophisticated (or at least successful) personal injury lawyer. Great. You're good at getting clients, negotiating settlements, and perhaps evoking sympathy from a jury. Those skills are incredibly valuable.

But that doesn't mean that you're necessarily Mr. Personal Jurisdiction. That's an important piece of the case. Critical, even, for getting this particular defendant on the hook. You gotta recognize that. Which in turn means thinking about bringing in someone who might be better than you (or at least more familiar with) these types of doctrinal fights. Otherwise, you risk results like the one that transpired here.

Maybe this particular defendant wasn't important enough to really focus on. Maybe plaintiff didn't really care if the manufacturer was left off the hook.

But it seems like a fairly big-ticket case, where one of the plaintiffs died and the other was presumably non-trivially injured. And the defendant definitely has deep pockets, plus insurance.

Probably worthwhile to make the hard core effort, and to make sure it's done right.

People v. Waldon (Cal. Supreme Ct. - Jan. 23, 2023)

Billy Ray Waldon seems to have committed a wide variety of murders (or at least so the jury found) in San Diego and, perhaps, elsewhere. He's not a guy, quite honestly, that I want back out on the street.

If I'm totally honest: Ever.

He's also fairly clearly got mental difficulties. Not that he's not seemingly quite smart. But he appears very much delusional. For example: "Waldon represented himself at trial. His defense was that federal agents framed him for the charged crimes to thwart his efforts to promote world peace, spread new languages, and advance Cherokee autonomy." 

More details, you ask? "Waldon claimed that he met a man named Mark Williams who kept appearing in various locations in Italy, Germany, and California, where Waldon was pursuing his education and activism. Waldon believed that Williams and another man were CIA agents who were monitoring him. . . . Men wearing ski masks and shirts that said “Federal Agent” joined Williams in beating Waldon; they cursed Poliespo and Waldon’s promotion of Indian autonomy. The men bound Waldon, took him away in their van, and kept him chained to a chair with a plastic hood over his head. Waldon managed to escape but learned from a news article that he was wanted for murder. He lived as a fugitive in a crawl space under a house in Imperial Beach, fearing that he would be convicted despite his innocence if he turned himself in."

To the surprise of no one (except, perhaps, Mr. Waldon), the jury rejects this defense and sentences Mr.Waldon to death for the murders.

The California Supreme Court unanimously reverses. Mr. Waldon shouldn't have been allowed to represent himself at trial.

It's hard to argue with that result. We don't want delusional people defending themselves. Lest we potentially put innocent people to death.

Which is not to say that Mr. Waldon is necessarily innocent. I strongly suspect he'll be found guilty at his retrial. In any event, he's been in prison forever. The murders at issue here were committed in 1985. That's nearly 40 years ago. It seems like he's been in prison since then on these charges, and the appeals have taken this long already. So now they'll be a retrial, more appeals, etc.

Mr. Waldon's already 59 years old. He's going to die in prison one way or the other, I believe. We're just shuffling paper around to make sure that everything goes as it should. (Eventually.)

One last thing. When someone files something like this, that's a pretty good indication that a guy might not be "all there" sufficient to allow the guy to defend himself in a capital murder case:

"In a December 1988 petition filed in propria persona, Waldon asked to represent himself “with full assistance of counsel” required to “obey” him. He stated that if his request were denied, he would seek to waive counsel and represent himself. In the nearly 100-page petition, Waldon complained of the “rampant sexual promiscuity” of his “omnivaginal” former trial counsel, alleging that counsel engaged in domineering sexual practices; sexual relations with inmates, judges, and prosecutors; drug dealing and Mafia involvement; and efforts to have a hit man kill him, among other menacing, unlawful, and sexually motivated conduct. Waldon claimed that counsel was “a brilliant and extremely dominating man, trapped in a woman’s body,” and that she tried to seduce him out of selfrepresentation by exposing her breasts to him."

Yep. Sounds persuasive to me. Definitely a guy I want representing himself in a life-or-death dispute.

People v. Morgan (Cal. Ct. App. - Jan. 20, 2023)

My first reaction to this case was: "Oh my. If you've been previously convicted of involuntary manslaughter for killing a guy -- while intoxicated, no less -- can you please not drive with a .BAC of .25?! You'd think you've have learned your lesson, no?"

Which, to be clear, remains my view.

That said, it's true that, here, the whole "killing the guy" thing happened literally 40+ years ago, when the defendant was only 19 years old. So, yeah, that's a long time ago.

Still. Definitely something you'd remember. The lesson shouldn't exactly fade.

Also, later in the opinion, when I learned that the now-somewhat-elderly defendant was picked up riding a motorcycle, I thought: "Well, at least he's riding a motorcycle instead of driving a car; that way, he's less likely to kill someone this time, and most likely just ends up killing himself. So that's something."

Which is true. Not a legal or moral defense to a DUI, obviously. But something.

Lastly, in the end, on the merits of the appeal, Justice Buchannan seems right. The relevant California statute says that a DUI gets transformed from a misdemeanor to a felony if the defendant has previously been convicted of certain specified offenses, including (as relevant here) Penal Code section 191.5, subdivision (a), which is gross vehicular manslaughter while intoxicated. But the defendant here (Mr. Morgan) wasn't convicted of that; rather, he was convicted of "vehicular manslaughter caused by unlawful exhibition of speed (former Pen. Code, § 192, subd. 3(a); Veh. Code, § 23109) and DUI (former Veh. Code, § 23101, subd. (a)), neither of which is listed as a qualifying prior for elevating a DUI to a felony under Vehicle Code section 23550.5, subdivision (b)." Those are different offenses than 191.5(a); indeed, 191.5(a) wasn't even enacted by the Legislature until 5 years after Mr. Morgan was convicted.

Mind you, the combination of the offenses for which Mr. Morgan was convicted (vehicular manslaughter plus DUI) seem pretty much identical in substance to the subsequently-enacted statute (191.5) that entitles the prosecution to elevate Morgan's current DUI to a felony. True that.

But as Justice Buchanan explains, the statutory language is nonetheless clear. It lists the qualifying convictions. Mr. Morgan's convictions aren't amongst those listed. That's pretty much the end of the matter. So Mr. Morgan's current DUI remains a misdemeanor rather than a felony.

Which -- as a reminder -- doesn't mean that it's a good idea.

But it's not a felony.

Adanna Car Wash Corp. v. Gomez (Cal. Ct. App. - Jan. 18, 2023)

Today's Court of Appeal opinion doesn't involve anything that's earth-shattering or critically important to society as a whole, and instead involves whether an appeal bond in a case involving alleged Labor Code violations can be satisfied by a different type of preexisting bond that's required of all car wash operators. Thus, unless you own a car wash (and allegedly stiff your employees out of overtime), the opinion isn't one that's likely to be of central importance to your being.

Perhaps for that reason, Justice Baker's concurrence was perhaps especially interesting. The concurrence says, in its entirety:

"Although I do not subscribe to all the particulars of the majority’s published opinion—which in several respects goes beyond what was presented to us in the briefs filed by the parties, I agree the result reached by the trial court should be affirmed."

I thought that was interesting because I suspect that a lot of justices on the Court of Appeal often share the exact same sentiment about some -- perhaps many -- of their colleague's opinions, yet join them in full. So I found it unusual that Justice Baker wanted to express the point in, of all opinions, this one.

Usually the informal give-and-take amongst justices on a panel obviates at least the perceived necessity for a concurrence like this one, at least in your run-of-the-mill type of dispute.

Not so here.

People v. Superior Court (Cortez) (Cal Ct. App. - Jan. 12, 2023)

If you're in jail, and I'm your attorney, please do not send things to me in envelope marked "Legal Mail" if they have previously been up your butt. Or anyone else's, for that matter.

Including but not limited to "kites" that aren't intended for me and that are marked "Do Not Read."

Seriously, I only want actual legal mail.

P.S. - Those kites aren't privileged. If they're for someone else and I'm not supposed to read them, they're not attorney-client communications.

U.S. v. Munoz (9th Cir. - Jan. 11, 2023)

I'm admittedly unsophisticated when it comes to the criminal possession of handguns by felons. But if you're carrying three handguns in your vehicle, why make one of them a "ghost gun" (e.g., one made of polymer and that doesn't contain a serial number)?

I can see why someone might want a ghost gun; that way, it can't be traced. But if the other two guns that you're carrying can be traced, doesn't that somewhat defeat the purpose of the third weapon?

I guess you could be selling the guns or something like that. Personally, though, I'd just stick to carrying either (1) regular old handguns, or (2) ghost guns. No mix-and-match.

People v. Cheek (Cal. Ct. App. - Jan. 6, 2023)

A sex offender is about to be released from prison. They're proposing to let him live someplace near you. You and your neighbors -- perhaps not surprisingly -- are not psyched about that. At all.

One rule about sex offenders is that they're not allowed to live within a quarter mile of a school.

Does this strategy work: Once you find out where he's planning to live, have you or one of your neighbors -- someone who lives within a quarter mile of his proposed residence -- start "homeschooling" their child in their residence. Thereby transforming the home into a "school" and stopping the sex offender from the ability to live in your neighborhood.

What do you think?

Justice Grover says: "Yep, that strategy works. It's now a school, so he can't live there."

Justice Lie says: "Nope, that doesn't work. That's not what we mean by a school."

Justice Greenwood agrees with Justice Grover, so that's now the law.

Which provides a fairly healthy -- and successful -- way to NIMBY your way out of a sex offender living in your neighborhood, eh?

Now, in turn, that means it'll probably be even more difficult, if not impossible, for the state to find a place for those convicted of sex offenses to actually live. Especially once people start realizing how easy it is to employ this artifice.

But Justice Grover says that's the Legislature's problem, not the judiciary's.

I'll add only one other thing, which neither opinion mentions, but nonetheless seems obvious to me. This trick works even with the most minimal of efforts. It doesn't have to be a "school" for anyone other than a single kid (e.g., your own). And once you've created that "school" and the sex offender is then placed in a different neighborhood -- one where the parents aren't nearly as creative as you are -- then, boom, you can stop homeschooling your kid and put them back into a "regular" school. You just gotta have that "school" for the brief moment when they're actively trying to place someone there.

Seems like a fairly effective machination, eh?

U.S. v. Knight (9th Cir. - Jan. 4, 2023)

The holding of today's Ninth Circuit opinion seems right to me, but I might have expressed the same view in a slightly softer tone.

A juror's wife gets sick in early 2021, and since it's the middle of the pandemic, people freak out that the wife -- and, by extension, the juror -- might have COVID. One option is to excuse the juror, but another is to have the juror temporarily view the trial remotely. The government isn't keen on that idea, but defendant is psyched for it, and the trial judge (Judge Du, in Nevada) thinks it's the best option. So Judge Du makes a very clear record that the defendant wants the juror to stay and to view the proceedings remotely, and the juror then does so for a couple of days, thereafter returning to participate in jury deliberations, ultimately resulting in a unanimous guilty verdict.

Defendant then appeals, claiming that the juror shouldn't have been able to remotely view the trial for those two days.

That's a tough sell, of course, since the defendant himself was totally in favor of the procedure that the district court employed. Doctrinally, however, if remote viewing is a "structural" error, then the fact that the defendant consented doesn't matter. So the question then becomes whether or not having jurors view a trial remotely is a structural error, or whether (instead) they have to specifically show prejudice.

The Ninth Circuit says that structural errors are rare, and that's true. But they exist. Things like not having a lawyer, not having a public trial, not being able to represent yourself, etc. We call those things types of "structural" errors in part because they're fundamental, and in part because it's super hard to demonstrate particularized prejudice from their denial. Take the right to a public trial, for example. There's no way that a criminal defendant will ever be able to show "prejudice" from keeping out the public, since the evidence and facts would presumably all remain the same. So if we required a showing a prejudice, we would never reverse. So we call these things "structural" and require reversal per se.

Today's opinion holds that having a juror (or jurors) view the trial remotely isn't a structural error, and I can see why that's the case.

But it's a lot closer, I think, than the current opinion might suggest.

Yeah, sometimes, you can identify particular errors with viewing testimony remotely -- for example, if the feed went out or the juror was watching ESPN instead of the trial -- and reverse on that basis. But there are other -- important -- reasons why we want trials to be in person that aren't amenable to similar showings of particularized prejudice. For example, one reason we have in-person trials is because we want the jurors to physically see (and, typically, be in the same room) as the defendant. You're deciding guilt or innocence, and sometimes life or death. (Here, the ultimate sentence is a little shy of 15 years in prison.) That's a fairly personal decision. We want you to physically be there. To show up in the majesty of a courtroom and look the defendant in the eye when you adjudicate their fate.

That's why -- back in the old days -- the Ninth Circuit held, for example, that it was structural error for a jury to sentence someone in absentia, without being physically present. A Ninth Circuit opinion that I happen to know a fair amount about since it was written (way back in 1992) by a judge for whom I was then a law clerk. Now, that particular Ninth Circuit ruling was subsequently overruled by a sharply split en banc opinion written by Judge Kozinski. But the principle remains, and the point is simply that it's a close issue sometimes. Physical presence matters. Sometimes, it's structural. Which is one reason why, for example, we don't conduct in absentia criminal trials (unless the defendant absconds after the trial commences). Some other countries convict people even if the defendant isn't present, on the theory that it doesn't really matter -- e.g., the defendant can't show specific prejudice. We don't.

You can see, I think, the potential parallel between a defendant not being at the trial, on the one hand, and a juror not being at the trial. Are there arguable differences? Of course. And, again, I can see why a panel might hold (as here) that so long as the defendant's affirmatively psyched for it, it's okay to allow a juror to view proceedings remotely for a limited period of time.

Still. It's a close one. So I'd have written the opinion cautiously. Including but not limited to talking about the structural errors of in absentia proceedings in general -- a topic that's entirely omitted from today's opinion.

But, hey, in the end, if you're okay with a juror viewing proceedings remotely for a couple of days, perhaps because you're thrilled to have that particular juror stay on the jury rather than be excused for cause, feel free. I'm okay with that. Your call.

Griego v. City of Barstow (Cal. Ct. App. - Jan. 3, 2023)

It's a new year, but 2023 does not begin with good news for Jesse Griego, who was a captain in the Barstow Fire Protection District until he was fired for various alleged misconduct. The trial court held that the City of Barstow had to reconsider its decision, but the Court of Appeal reverses, holding that Mr. Griego stays fired. 

Which, in truth, is a result that is perhaps not surprising given the various allegations leveled against him. Which include the following:

"Griego worked for the Fire District from 1997 to 2018. He also coached children’s sports teams, including the girls’ softball team at Barstow High School.

In 2007, the Fire District issued a memorandum to its captains directing personnel not to attend sporting events while on duty. On March 23, 2017, a fire chief verbally reprimanded Griego for coaching on duty. Griego was defensive and argumentative. The fire chief told him, “[T]here is no coaching on duty in any capacity. Do not take the engine. Period.” Griego expressed no regret, and later was seen again attending a sporting event while on duty. On March 29, 2017, the chief issued a written reprimand.

Also in early 2017, a safety officer at Barstow High School reported she suspected an inappropriate relationship between Griego and a 15-year-old student, H.S. The officer saw Griego bring H.S. lunch during school hours and H.S. drive Griego’s car. She heard students saying H.S. was wearing Griego’s shirt, the two had adopted a cat together, and they had visited a theme park together. 

The Barstow Police Department opened a criminal investigation into Griego for suspected statutory rape (Pen. Code, § 261.5). The City placed Griego on paid administrative leave, and Barstow High School told him to end contact with the girls’ softball team. Nonetheless, Griego continued to attend practices and games and to communicate with coaches and players, including H.S. . . .

The City’s investigator sustained 19 allegations against Griego. These allegations included, among others, that Griego (1) sought an “intimate dating relationship” with minor H.S.; (2) defied specific directions not to coach while on duty despite multiple warnings; (3) carried a concealed handgun outside his home without a permit; and (4) filed a false court document under penalty of perjury. 

The handgun allegation referred to November 2017, when Griego carried a concealed gun to investigate suspicious people outside his home. A police officer arrived and asked Griego if he had a gun; Griego said yes and showed it to him. The officer asked if he had a concealed carry permit; Griego did not. Penal Code section 25400 prohibits carrying a concealed gun in public without a permit.

As for the perjury, in 2017 Griego’s ex-wife applied for a domestic violence restraining order against him. A temporary restraining order issued in July 2017 included a direction to store any firearms with the police department or a licensed gun dealer. Yet in August 2017, Griego signed and filed a response that declared, “I do not own or have any guns or firearms.” Griego later admitted he had owned guns for about two years. Regarding the false court filing, he said, “I probably didn’t even read that and pay attention to that.”"

Let's face it: those are not great (alleged) facts if you're trying to keep your job. In the public sector or anywhere else.