Rattary v. Favro (Cal. Ct. App. - Nov. 29, 2023)

I actually think that the core problem here (if any) were the jury instructions, not the counsel's closing argument. If the instructions were right, then the trial court's admonition that counsel's arguments aren't the law (and to follow the instructions instead) would have solved the problem. By contrast, if the instructions were wrong, then reversal is probably required anyway -- regardless whether counsel for defendant made an argument based on those instructions during closing.

It's also somewhat weird to have an opinion that esoterically talks about the underlying legal issue that went to trial -- here, whether the risks to the plaintiff firefighters were something other than the inherent dangers of their job -- without any recitation of the actual facts of the case. Those are generally relevant, no? There was a whole trial, after all. Maybe a paragraph or two (or more) about what actually happened that gave rise to the lawsuit would be a nice background -- or introduction -- to the underlying legal issue, rather than a purely esoteric discussion of the doctrine untethered to any actual facts.

But, yeah, I could see how one might find the instructions here confusing (or inaccurate). Potentially, anyway. (Whether the jury was, in fact, likely confused by them would require me to know a lot more about the actual facts of the case and/or evidence at trial than is available here.)

In re Banks (Cal. Ct. App. - Nov. 27, 2023)

There's a lot to be said for this opinion. But, to be honest, there's probably a lot to be said for the other side as well.

It's a prison drug smuggling case. There are lots of those. Moreover, the facts here probably happen a dozen or more times a day.

Someone send a package to a California inmate using a fake return address. Why the fake return address? Because the package contains drugs. (In this case, Suboxone.) Prison packages all get inspected (duh), and the person sending it clearly knows that, so the drugs are concealed. But prison officials discover the drugs notwithstanding the attempted concealment.

They can't prosecute the person who sent the package because they don't know who it is and really have no way to find out (as long as they, smartly, left no fingerprints or DNA).

So they charge the inmate. Not criminally, but with a rules violation. The guy -- Mr. Banks -- loses 180 days of custody credits, plus loses some privileges.

He files a habeas corpus petition. His position is a fairly straightforward one: I didn't do it.

There you pretty much have it. There's no direct evidence that Banks asked for the narcotics to be sent to him. Pretty much obviously, because (1) we don't know who sent 'em, and (2) Banks says (duh) he didn't do it.

But is the circumstantial evidence enough? 

Most people don't unilaterally send drugs to inmates. That's just not really a thing, honestly. It's pretty much honestly a two-way street the overwhelming majority of the time.

But, hey, maybe some people do. At least sometimes. Maybe it's a birthday thing. Maybe they're just being nice. Just because you get something in the mail doesn't necessarily mean you asked for it.

Or, conversely, maybe the sender hates the recipient. Is trying to actively get 'em into trouble. I'm sure that happens at least sometimes.

So what do you think? Is the circumstantial evidence enough?

The Court of Appeal says: Nope. You gotta have more. Just getting drugs addressed to you in prison doesn't mean you were involved.

Which, as I said, in some ways, I understand. It could definitely be the unilateral act of someone who likes (or dislikes) you. That's a definite possibility, so I can see why the Court of Appeal comes out the way it does.

But, in truth, if this is indeed, the law, then man, people are definitely going to start sending a ton more drugs to prison. Because why not? It's easy to use a fake address, and at least sometimes, the officers will not discover the stuff. So you'll 100% get away with it. And if the inmate can't be charged either, it's a total no-brainer. Give it a shot.

Sure, don't be a moron. Don't use your own name. Use a fake return address. Hide the stuff as best you can. Wear gloves. Don't lick the stamp -- use water. And don't be an idiot and talk to the inmate about this on the (recorded) jail house phone. Just do it.

And, presto, the inmate has an immensely valuable jailhouse commodity. Or an easy-ish high himself.

Personally, if the drugs were concealed -- as they were here -- I'd normally find that fairly powerful (albeit circumstantial) evidence that the inmate was in on it. Because if they were successfully hidden from the officers, then unless the inmate was in on it, they'd likely be hidden from the inmate and well, which sort of defeats the purpose of the whole endeavor.

That said, I totally get the flip side as well. If this counts as sufficient evidence, then people should definitely send "hidden" drugs to inmates they hate. Because then the officers will (hopefully) discover them and, boom, add another half-year to the guy's sentence.

It seems to me like both options here have really big downsides. But you're pretty much forced to select one or the other as your controlling legal principle.

Because this kind of thing likely happens, I suspect, a lot. I have little doubt that, most of the time, it's the product of an express or implied agreement involving the inmate.

But not all the time.

So what solution?

It's a toughie.

For now, at least, the answer is: No punishment.

So ship away. Largely with impunity.

Z.V. v. Cheryl W. (Cal. Ct. App. - Nov. 22, 2023)

I procrastinate as much as anyone. Nonetheless, a notice of appeal is super easy to prepare and file. I don't understand why people wait until the last minute to file one.

Like here.

People v. Banks (Cal. Ct. App. - Nov. 20, 2023)

"Doe was born in 2003. She lived with her mother in Oakland. Doe’s mother was abusive toward her and when Doe was 10 years old, her mother “kicked her out of the house.” When Doe was 11 years old, she became a prostitute. The Sacramento Sheriff’s Department arrested Doe and returned her to her mother. She was not welcome there and Doe returned to a life on the streets.

Doe continued to work as a prostitute. She worked for her first pimp at the age of 12. She left him when he became violent. She worked for a second pimp but left him after he too, became violent.

In September 2018, Doe met appellant. At that time, she had been working by herself as a “renegade,” that is, a prostitute who works without a pimp. Doe was 14 years old. Appellant was 35 years old. Doe trusted appellant and gave him her telephone number. Later that same day, appellant picked Doe up in his Jaguar and took her shopping for boots. As they were driving, Doe received a telephone call from a police officer. Appellant immediately changed Doe’s phone number without her consent. 

Doe began working as a prostitute for appellant that same day. Appellant set the rules that Doe was required to follow. He expected her to hold a door open for him. When she did not, appellant got mad and raised his hand like he was going to hit her. He also had rules regarding how Doe was to dress and wear her hair. He told Doe to wear different colored wigs every night, as well as revealing clothing, and high heel shoes. He told her to call him “Daddy.” He controlled what she could and could not do, who she could speak to, when she worked, when she slept, and when she ate. He physically battered her on three occasions."

An 11-year old prostitute. Just: Wow. 

Tak Chun Gaming Promotion Co. v. Long (Cal. Ct. App. - Nov. 17, 2023)

The Court of Appeal makes only one edit to this published opinion, and it softens it. A tiny bit.

"It is ordered that the opinion filed herein on October 26, 2023, be modified as follows:

On page 11, in lines 5 and 6 of footnote 4, delete the phrase “Tak Chun distastefully implies” and replace it with the phrase “Tak Chun’s comparison could be read to distastefully imply” so the full footnote reads as follows:

Tak Chun’s comparison to our Supreme Court’s decision in In re Marriage Cases (2008) 43 Cal.4th 757 is ill conceived, for this decision was an acknowledgment that persons of different sexual orientations are entitled to the equal protection of the law authorizing marriage rather than, as Tak Chun’s comparison could be read to distastefully imply, an illustration of a “substantial shift of public acceptance or morality” in California." 

Escamilla v. Vannucci (Cal. Ct. App. - Nov. 16, 2023)

My general rule is this: Don't sue lawyers for malicious prosecution. Pretty much ever. You're much more likely to get SLAPPed than you are to actually prevail.

Like here.

People v. Villegas (Cal. Ct. App. - Nov. 15, 2023)

Imagine making the following call to your client after today's opinion by the Court of Appeal:

"Good news! We won part of our appeal. We reduced your molestation sentence by 30 years!

Now your sentence is only 172 years to life."

Nicoletti v. Kest (Cal. Ct. App. - Nov. 14, 2023)

When it rains in Los Angeles, there are sometimes (often?) places in which there's a visible current of water. Maybe on the street, maybe on the sidewalk, maybe in a driveway.

Here's two things you should know:

(1) Don't walk there. Currents are often surprisingly powerful. They can knock you down and/or push you downstream. You can potentially be severely injured, or even killed. Walk around it.

(2) If you ignore (1), you can't sue the property owner. It's an open and obvious danger.

Act accordingly.

California Const. & Indust. Minerals Ass'n v. County of Ventura (Cal. Ct. App. - Nov. 13, 2023)

It's been a lazy series of days for the Ninth Circuit and California appellate courts lately. Before today, the Ninth Circuit published a grand total of two opinions in the last ten days. And on Thursday and Friday, the Court of Appeal published . . . nothing. Tough to talk about published opinions that don't exist.

Today, at least, sees one published opinion from the Ninth Circuit, and (thus far) another one from the Court of Appeal. The latter is slightly interesting. Usually, environmental challenges are brought by anti-development or wildlife advocates; for example, to stop a housing or commercial development.

But this opinion involves the exact opposite.

Ventura County passed an ordinance that set aside 163,000 acres of less developed land so that wild animals can roam around without being disturbed by human activities. A pro-business entity -- the California Construction and Industrial Minerals Association -- sued, claiming that the ordinance was, among other things, inconsistent with the California Environmental Quality Act (CEQA), which, as you likely know, is a pro-environmental statute. According to the plaintiff, the County had to do an extensive study before setting aside the land to protect wildlife.

The trial court dismissed the lawsuit, and the Court of Appeal affirms. Setting aside land for wildlife does not harm wildlife. That's basically the point of two categorical exemptions from CEQA. (Exemption No. 7: "Actions taken by regulatory agencies as authorized by state law or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment." Exemption No. 8: "Actions taken by regulatory agencies, as authorized by state or local ordinance, to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment.") Plus the "common sense" exception, which seems equally applicable here.

Sometimes people file CEQA actions merely to delay things, even when there's not a high likelihood of success. Perhaps that was the goal here. Or perhaps the plaintiffs radically poorly assessed the probability that they would win this one.

In re Marriage of Motiska & Ford (Cal. Ct. App. - Nov. 8, 2023)

Even from just reading the opinion -- which forcefully argues in one particular direction -- I can definitely see both sides of this dispute, and why each might well be reasonable. But, on the whole, I probably think that Justice Streeter is right.

It's a family law dispute, so a tiny bit of background is probably helpful. In California, community property gets split 50/50 on divorce, whereas separate property goes 100% to the owner. But sometimes, separate property (say, an inheritance) gets used to fund a community asset (for example, as a down payment for a house). In that event, the amount of the separate property "gifted" to the martial estate gets refunded upon divorce to the separate ownership of the contributing spouse.

There are lots of reasons for that rule, and it's fairly well-established.

Today's opinion, however, involves a slight twist on the typical factual setting.

One spouse owns a company -- call it Company A -- before marriage. So that's his separate property. During the marriage, Company A becomes Company B. Basically the same business, but a different name. (He's probably doing this for asset protection reasons, because Company A is a sole proprietorship, which has individual liability concerns, but his motive isn't really all that important to our analysis.)

Now, if the spouse gifted Company A to Company B, he'd be entitled to a refund (upon divorce) of the value of the separate property (A) he contributed to the marital asset (B). But, here, he didn't do that. It wasn't a gift. Rather, he sold Company A to Company B.

Well, then, you don't get a refund. It was a sale. You already got as your separate property whatever the marital asset (B) paid for A.

But here's the rub: Company B paid exactly $1 for Company A.

We all know why they did it that way. It's nominal consideration. They want it to be a sale (rather than a gift or merger) for liability and other reasons, but they also want the sale price to be meaningful in order to avoid transfer taxes or other complexities. So it's essentially a gift, but it's nonetheless legally a sale.

There's zero doubt that Company A was in fact worth tons more than $1. But that's nonetheless what the sale price was. Do you get a refund of separate upon divorce, or not?

The Court of Appeal says: No, you don't. It was a sale. You set the price. So that's what it was worth. Period. It was a sale, so no contribution right upon divorce.

As I said, I get that. It's an overly formalist answer, because I'm sure that there was, in fact, value to A, and the nominal purchase price essentially was a gift -- in anything but name. Hence the argument that the usual contribution rules should apply.

But, in the end, I'm persuaded by the old aphorism -- which, to be clear, is found nowhere in the Court of Appeal's opinion -- that "you pays your money and you takes your chances." The spouse here called it a sale and set the price at $1. That was his call. When you call it a sale and say that the value of A is $1, well, okay then, that's what we'll find. The fact that the truth is probably otherwise doesn't really matter at this point. You thought, and said, otherwise at the time. Your call. Sorry it didn't turn out so well for you in the end, but that's life.

Maybe next time, call it what it actually is, and the result would be different.

Or, perhaps, see a lawyer before selling your business to yourself. One who knows a little bit about family law, maybe. Because it might well matter. As it did here.

Coronavirus Reporter v. Apple (9th Cir. - Nov. 3, 2023)

I'm not really sure why this opinion meets the standard for publication.

Plaintiffs want to sell apps called the "Coronavirus Reporter" and "Bitcoin Lottery" on Apple's App Store. But Apple doesn't allow bitcoin apps at all, and does allow COVID apps unless they're from a recognized health entity.

So plaintiffs sue. They (and their counsel) file a slapshot complaint that alleges antitrust violations with fifteen different alleged "relevant markets" and breach of contract even though they can't identify any part of the contract that Apple (which wrote the thing) allegedly violated. The district court dismisses the suit, and in a dozen pages, the Ninth Circuit affirms.

It's a pretty straightforward case, and it loses for fairly straightforward, easily-applied reasons.

No harm in publishing the thing, I guess. No real benefit -- that I can see, anyway -- either.

Hanagami v. Epic Games (9th Cir. - Nov. 2, 2023)

You can't copyright a musical tone, but you can copyright a musical composition -- or even a particular set of a dozen or so musical tones put together in a particular way.

Similarly, you can't copyright a particular human pose -- e.g., hands on your hips -- but you can copyright a particular set of human poses choreographed together in a particular way.

So holds the Ninth Circuit, which reversed the district court's dismissal of a complaint alleging that the makers of Fortnite had illegally copied one of his copyrighted dance moves for an "emote" available in the game.

You can read Judge Paez's 28-page, single-spaced opinion if you'd like. It's well-crafted and smart.

Or, if you have less time, just look at the following YouTube video, a link to which is contained in one of the footnotes of the opinion and which was created by counsel for the plaintiff. The video compares the Fortnite emote at issue to portions of the copyrighted dance moves.

https://www.youtube.com/watch?v=vXYDr9o_FJY

Pretty darn similar, eh?

The old saying is that a picture is sometimes worth a thousand words. To me, the video here is worth the 7341 words in Judge Paez's opinion.

Maybe even more.

Zachary H. v. Teri A. (Cal. Ct. App. - Nov. 1, 2023)

It saddens me to know that there are cases, like this one, in which a son obtains a restraining order against his mother. I've read a ton of DVRO cases over the years, obviously, but don't recall seeing a situation like that before today.

Not that children can't potentially fear -- or be harassed -- by their parents. Still. It's depressing to know that things sometimes come to that.

To make things worse, after I read a tiny line on page 12 of the opinion, I learn that the mom also has an out-of-state restraining order entered against her by her daughter. Ugh.

What's also a little unusual is that both of the parties here have lawyers. Lots of these cases (and appeals) are filed pro per. Yet another downside of the whole situation: money flushed down the drain.

Camenzind v. California Exposition & State Fair (9th Cir. - Oct. 31, 2023)

 Judge VanDyke has a point here.

The question is whether the Cal Expo fairgrounds in Sacramento are a public forum sufficient to allow people to distribute First Amendment literature therein. In this particular case, the plaintiff bought a ticket to the Hmong New Year Festival, started distributing literature, got ejected, and then sued.

Right or wrong, it's fairly clear that there's no right under federal law to distribute literature in a privately owned forum. Here, the fairgrounds were rented by a private party for the festival, so the federal claim doesn't succeed.

But as you may know, California has the Pruneyard doctrine, which is broader than federal law and allows access to private properties (e.g., shopping malls) under California's Free Speech Clause. That's plaintiff's much better argument.

The majority nonetheless rejects it, holding that, as a matter of California constitutional law, the Free Speech Clause doesn't apply to properties in which paid admission is required (unlike, say, a shopping mall).

Judge VanDyke dissents, saying that the majority's test doesn't actually derive from any California cases. He'd remand for more factual development.

As I said, Judge VanDyke has a point. I'm not at all confident that the California Supreme Court would come out the same way here. I might well have certified this one, particularly if the alternative was to create a fairly novel test that might perhaps be supported by some discussions in dicta from lower courts but nonetheless has never been articulated by the state supreme court.

As a tactical matter, I probably would have filed this lawsuit in state court, ditching the federal claim, rather than federal court. The lawyers from the Pacific Justice Institute adopted the opposite strategy, and it didn't work out, either in the trial court (which granted summary judgment to the defendant) or on appeal. Given Pruneyard -- which, I get, was rendered in an era in which California courts were perhaps more strongly free speech oriented than today -- I think that the state court might well have been more solicitous of the state law constitutional claim than federal judges.

Plaintiff can still take its shot in the United States Supreme Court, but I don't think that'll go anywhere.

Tedesco v. White (Cal. Ct. App. - Oct. 30, 2023)

Here's a fairly good primer on how to file (1) a poorly written brief on appeal, (2) that not only loses, but results in the Court of Appeal slamming you in a published opinion.

Here's how Justice Goethals' opinion begins:

"A bulldozer can move piles of dirt from one place to another. But when the goal is to move minds rather than dirt, employing a bulldozer may be counterproductive. The bulldozer in this case is appellant Debra Wear’s counsel. In our prior nonpublished opinion, Tedesco v. White (June 15, 2022, G059883) (Tedesco 1), we made clear to these lawyers that “[w]e do not confuse aggressive argument with persuasive advocacy.” Although the aggression has not abated, our view of it remains unchanged."

That's not a good sign if you're the appellant (or her counsel).

In truth, the Court of Appeal is actually fairly nice to appellant's counsel given the underlying briefs and their content. For  example, here are some of the section headings contained in appellants' opening brief, and some of the statements therein:

H. The Court of Appeal and Riverside Court Violate Due Process to Assure Loss of Tedesco's Rights. . . . The Opinion in 4th Civil No. E070316 rested on systematic misrepresentation of the record and absurd misstatements of law. . . . I. Division Two Misrepresents its Own Opinion, Violates Due Process and Statutory Rights, and Denies Hearing on Constitutional Violations and Conservator's Breach of Duty. . . . In an order of June 5, 2020, Justices Ramirez, McKinster and Slough dismissed the appeal on indisputably false grounds. "Our opinion [in Case No. E070316] ruled that non-appointed counsel, Stephen Carpenter, Gloria Tedesco and Debra Wear have no standing; therefore, none of the documents they filed on behalf of Thomas S. Tedesco were properly filed. Our ruling became law of the case and binding on the parties and probate court. Those same orders cannot be appealed to this court again. [2App. 3223]" This was nonsense."

No, those are not the words of a pro se litigant. They're the words of a lawyer: appellant's counsel, Ian Herzog and Evan D. Marshall, of Herzog, Yuhas, Ehrlich & Ardell in L.A.

Not exactly the way to persuade the Court of Appeal. Given that content, Justice Goethals' rebuke of appellants' counsel -- hidden in a footnote -- is actually fairly mild. "In appellant’s opening brief, counsel once again explicitly disparages the integrity of our colleagues in the Fourth District, Division 2. We caution counsel about such tactics."

The Court of Appeal affirms the $6,000 sanction, awards costs to appellees, and moves on.

Fair enough.

Tak Chun Gaming Promotion Co. v. Long (Cal. Ct. App. - Oct. 26, 2023)

This opinion by Justice Hoffstadt has a ton going for it, and I really like the way he goes about it. I also think it's a fascinating topic, both on the particular issue it addresses as well as a matter of the overarching question of how the common law evolves in California.

It's a topic near and dear to the hearts of many people: gambling debts. Can you sue for them in California courts?

The defendant here, Kevin Long, took a large number of trips to Macau and spent -- and lost -- a ton of money in casinos. He took out $11 million in casino chips and only paid back $1.7 million. So he owes a massive amount of money, so plaintiff sues him in California, which is where he lives.

Will California courts hear that lawsuit?

The Court of Appeal says: No.

Traditionally, California courts didn't enforce gambling debts because gambling was illegal. Obviously, the latter is no longer the case, at least in a ton of areas. Moreover, the gambling at issue here was not illegal. Plaintiff accordingly argues that it makes no sense not to enforce gambling debts incurred in legal gambling, and so the traditional common law rule should change.

Justice Hoffstadt disagrees. He starts the opinion by noting that California generally follows the common law of England (Civil Code sect. 22.2), which has refused to enforce gambling debts since the Statute of Anne. So that's the default rule of decision. Moreover, he holds that there's no reason to change that rule now. Just because California has allowed some gambling doesn't mean we necessarily allow enforcement of gambling debts generally, so lawsuit dismissed.

As I said, there's a lot going for the opinion's analysis. I particularly liked -- and agree with -- the fact that the opinion distinguished between gambling, on the one hand, and gambling debts on the other. The two are not synonymous. It's entirely rational, in my view, to allow gambling, but nonetheless refuse to enforce gambling debts. It's one thing to say that a gambler who has the money to burn in front of him is allowed to gamble. It's quite another, in my view, to say that gambling no more pernicious when the gambler does not have the money and instead is taking out (often ever-increasing) loans to chase his losses. It doesn't take a rocket scientist to know that "gambler's ruin" -- and its effect on both individuals and society as a whole -- is substantially more likely when you're permitted to take out loan after loan after loan from the casino than when you're limited to the cash you brought with you. It makes eminent sense to me to legally distinguish between the two. The fact that we allow one does not necessarily equate to allowing the other. Similarly, the fact that we allow lotteries and the like hardly establishes that we'll enforce gambling debts writ large.

So all that I like, and I think today's opinion makes eminent sense on that front.

I do think, however, that there are a couple of areas in which the opinion could be a fair piece stronger.

First, I think that the argument raised in footnote five is perhaps stronger than Justice Hoffstadt gives it credit. Plaintiff notes, correctly, that California regulations currently allow legal card rooms to extend credit to their customers, with specific limitations. Justice Hoffstadt responds that that doesn't prove that the resulting debts are enforceable. But why allow an extension of credit -- and, even then, in only limited and particularized settings -- if the enforcement of any of those debts is impermissible? To me, that would make no sense. Why not either prohibit loans entirely (or, conversely, allow all of 'em) if none of them can be enforced anyway?

A similar problem exists in footnote six. California precedent currently allows California courts to enforce judgments of other tribunals (e.g., other states) even when those judgments enforce gambling debts. That's not, California courts have held, contrary to our public policy. But if we're going to enforce those debts, why aren't we willing to enforce the debts directly ourselves? Justice Hoffstadt responds that we have more deference (under the Full Faith and Credit Clause) to judgments, and that's true. But there's a public policy exception to that deference -- one that we don't apply with respect to gambling debts. If there's not a public policy reason not to enforce gambling debts in that context, why is there nonetheless a public policy reason to not enforce gambling debts in our own forum? That does not make facial sense: either gambling debts are sufficiently wrong to enforce or not. Justice Hoffsadt doesn't really give a reason, in my view, why direct enforcement in our own courts would be inferior to blanket enforcement by other courts; indeed, having those suits heard in our own courts would allow us to potentially weed out the abusive gambling debts from nonabusive ones, as opposed to simply rubber stamping whatever judgment was rendered by the other jurisdiction.

More fundamentally, what's the point of California's nonenforcement of gambling debts if all the plaintiff has to do is simply sue in a different court (e.g., in Macau, or Nevada, or what have you) and then bring the judgment here, at which point we enforce it? That seems to exalt form over substance.

One final thought. Justice Hoffstadt begins the opinion by stressing that he's following the English common law on this score, which is the default rule under the California Civil Code. Fair enough, and that common law has indeed prohibited enforcement of gambling debts for some time. He also notes on page six of the opinion that our incorporation of English common law includes incorporation of English statutes passed by Parliament. Fair enough. So California generally does what England does.

But here's the thing. Although none of the briefs of the parties seem to mention it, I believe that English law currently does enforce gambling debts, at least since the passage of the Gambling Act of 2005. Yes, before that, contracts related to gambling (including but not limited to debts arising therefrom) were not enforced. But Section 335 of the Act seems to fairly clearly repeal that law and allow their enforcement; moreover, the government of England expressly says that gambling debts can now be legally enforced in English courts.

Given the structure of today's opinion, and its reliance upon English law and California Civil Code 22.2, that seems like a pretty important fact, no? So I'd love to hear how Justice Hoffstadt would deal with it. (Sure, he can say that the parties waived that argument by not raising it, but that just means that the opinion's holding is "good for this case only" and doesn't really answer the broader question.)

Regardless, it's definitely an opinion worth reading, and one with which I have a ton of sympathy. I just still have some questions after reading it -- ones that make me wonder whether I'd be compelled to go the other way notwithstanding my strong personal preferences in this regard.

Snoeck v. ExakTime (Cal. Ct. App. - Oct. 25, 2023)

This is a definite "I've got some good news and some bad news for you" type of case, at least for the underlying lawyer, Perry Smith.

The good news is that he represents the plaintiff and wins the underlying lawsuit, as well as gets awarded attorney's fees. No small win, either. It's a FEHA case, and plaintiff obtains a judgment at trial for a little over $130,000. The attorney fee award is even bigger: over $680,000 in fees, at a relatively hefty hourly rate (for Smith) of $750/hour. That's definitely good news.

The bad news, however, is that Smith wanted even more in attorney's fees: over $2 million, including a 1.75 multiplier. But not only did the trial court refuse to give the requested multiplier, but it also reduced the fee award on a variety of grounds. The largest of which was a 40% reduction based on Smith's alleged repeated "incivility" to both opposing counsel as well as the court.

Not only does the Court of Appeal affirm, but it publishes an opinion that quotes in excruciating detail various instances of incivility by Smith. So not only does the attorney get hit (fairly substantially) in the pocketbook, but is hit reputationally as well.

The opinion is 40 pages. It recounts stuff that, in my experience, is not unprecedented, but nonetheless clearly reflects an attorney who's way overly aggressive in both tone and content. Not only with opposing counsel in emails, but -- particularly cringeworthy -- to both the trial court and the Court of Appeal, orally as well as in writing.

I get that you sometimes hate opposing counsel. Sometimes perhaps understandably so.

But you have to tamp that stuff down. Or at least not go way overboard.

Otherwise you risk something like this.

Plaintiff's counsel now appears to have his own firm, rather than the firm listed on the caption, and the new firm's website lists a lot of positive things that people have allegedly said about Mr. Smith. I suspect, though, that nothing from today's opinion will be included on that same website anytime soon.

People v. Hampton (Cal. Ct. App. - Oct. 25, 2023)

Check out the facts of this armed robbery:

"In July 2014, Hampton began working as a manager at the Rainforest Cafe, a restaurant in the Fisherman’s Wharf area that occupied several floors of a large building. . . . In 2015, about a year into his employment, Hampton asked for time off over the July 4 holiday weekend. After the general manager denied the request, Hampton stopped going to work. Hampton came to the restaurant later in July to pick up his final check, but he did not return his set of keys to the restaurant . . .

Around 1:00 a.m. on Friday, August 28, 2015, another manager, E.S., was in the manager’s office. As was usual, the door to the manager’s office was open. E.S. was sitting in a rolling chair, finishing paperwork, when someone wearing a red motorcycle helmet came up behind him and put their arm around his throat.

The person wheeled E.S. to the safe where the cash was kept, and “made a hand gesture” indicating E.S. should open it. E.S. responded that the safe was time-locked and could not be opened, which was untrue. The person then produced “a silver pistol,” cocked it, and “tapped the safe to . . . indicate that they knew the safe opened.” E.S., who was not familiar with guns, testified that he could not be sure whether the pistol was real or operable. Nonetheless, he was frightened, and he opened the safe, which contained almost $9,000.

The person then rolled E.S. to a corner of the manager’s office, bound his arms, and placed a shirt over his head. It seemed to E.S. that the person was “really slow” and “took their time when they tied [him] up,” which was not done “aggressive[ly].” After several minutes during which E.S. could hear “rummaging,” the person left, having “never said a word.” E.S. was eventually able to free himself and call 911. After doing so, he realized that the cash was missing from the safe.

The Rainforest Cafe had a surveillance system covering much of the restaurant, including hallways and the manager’s office. Recordings from the night of the robbery, which the general manager reviewed with the police, showed a “very stocky, mus[cl]y” person “[w]earing dark clothing, in a motorcycle helmet with a dark shield, so you could not see the face,” enter the building through the Mason Street door. The person proceeded to the third floor and into the manager’s office, where the robbery occurred. 

The general manager testified that it struck him “[h]ow calmly and slowly the person . . . came in the building and how familiar it appeared to be to them,” as they “kn[ew] exactly where to go to commit the armed robbery, where the money would be and on what floor.” The general manager also observed that the person’s “walk and body style” were similar to those of Hampton, whom the general manager described as a “very clean, crisp, very mus[cl]y man, very, very strong powerful man.” Similarly, E.S., who was friends with Hampton, testified that Hampton was “in good shape” and “definitely of muscular build.” 

A nearby business’s surveillance footage showed the suspect, wearing a red motorcycle helmet, enter a white four-door sedan soon after the robbery. At the time, Hampton and his wife had a similar car, a white Nissan Altima. 

Based on the robber’s appearance and familiarity with the building, the general manager suspected the robber was Hampton. After forming this suspicion, the general manager watched surveillance footage from the previous Monday morning, August 24, 2015, at the end of the last night shift before pickup of the weekend receipts later that day. The footage showed a person enter the building through the Mason Street door, check the hallway doors and, finding them locked, turn around and leave. A Rainforest Cafe cook testified that around 1:00 a.m. on that morning, he was outside the restaurant with friends and saw Hampton walking back and forth. The cook then saw Hampton leave in a white four-door sedan. 

The prosecution also presented evidence obtained from Hampton’s cell phone. Hampton sent incriminating text messages to another man leading up to and immediately after the robbery. In addition, other text messages indicated that Hampton paid two significant debts shortly after the robbery occurred."

The jury ultimately convicts Hampton of the robbery. What do you think his sentence was?

Answer: Three years of probation. 

I would have thought the guy would have gotten a much longer sentence. Even in San Francisco.

People v. Shah (Cal. Ct. App. - Oct. 24, 2023)

It's extremely difficult -- but not impossible -- to get a restitution order satisfied even when the convicted criminal defendant owns real property.

Here's proof.

Ross v. Seyfarth Shaw LLP (Cal. Ct. App. - Oct. 20, 2023)

I always read carefully cases in which someone sues a law firm, if only for the "There but for the grace of God" aspect of the thing. Particularly when the lawsuit involves, as here, a relatively well-known firm, I'm particularly interested in both the underlying facts as well as the result.

Here, Seyfarth Shaw prevails, both in the trial court (in which the plaintiffs voluntarily dismissed their lawsuit after receiving the trial court's tentative) as well as in the Court of Appeal (where they get their anti-SLAPP fees increased from the 80% that the trial court granted to the full 100%). So victory for the law firm.

But I also thought it was interesting just how aggressive the plaintiffs were below. Defendants filed an anti-SLAPP motion, and the Court of Appeal's opinion says that "Plaintiffs opposed the motion and submitted declarations and evidence of their own totaling nearly 3,000 pages. Defendants filed a reply and plaintiffs filed a 70-page surreply." That's a ton of pages, particularly the 70-page surreply!

Then there are the briefs on appeal. "Plaintiffs’ opening brief contained approximately 124 headings over 58 pages and their reply brief contained approximately 320 headings over 130 pages. In a few instances, the headings introduce so little as, “[t]he title of this section is incorporated herein by reference,” or even nothing at all. In many others, they are followed by declaratory statements unsupported by legal authority, record citations, or analysis. Further, some factual citations plaintiffs did provide led to material bearing no apparent relation to the propositions cited."

Yeah, that's . . . not good. Aggressive, but not the way to win the hearts and minds of the justices.

So I looked to see who the attorneys were for the plaintiffs.

Ah. Now I get it. They were pro per on appeal. A former linguistics professor at Cal State Fullerton who the university attempted to fire and her spouse. Who are suing the law firm that conducted CSUF's investigation into their harassment allegations and concluded that they were unfounded.

Litigants who represent themselves often get overly wound up in that context. To their detriment.

One last thing. On page 10, Justice Grimes' opinion says: "Plaintiffs argue that fee and cost awards are not mandatory where a plaintiff has dismissed the special motion to strike before it was heard." I'm pretty sure that sentence means to say something like "Plaintiffs argue that fee and cost awards are not mandatory where a plaintiff has dismissed her lawsuit before Defendants' special motion to strike was heard." As Plaintiffs generally don't file (or dismiss) anti-SLAPP motions (and instead dismiss, as here, lawsuits); defendants do.