Clearly I'm just meaner than the Court of Appeal. Or at least the 4/3.
Plaintiff files a lawsuit, and defendant propounds twenty RFAs. Plaintiff entirely fails to respond during the relevant statutory period (30 days). Okay. All objections waived. Not exactly great lawyering, but if that's the type of attorney you hired, so be it. Strike one.
Plaintiff doesn't correct its error and make responses after the deadline either. So now defendant has to move to deem the answers admitted, which it does. Strike two.
Then, ten days before the hearing on the motion, Plaintiff (finally) propounds answers to the RFAs, denying some and admitting others. But he nonetheless objects to every one of the RFAs via "general objections" that have -- duh -- already been waived by the failure to timely respond in the first place.
In my view, that's strike three. Yes, the CCP allows you to not have the RFAs deemed admitted if you propound responses in "substantial compliance" with the rules prior to the hearing. But it's always been the case -- or at least that's what I teach in my Pretrial Practice class -- that propounding an (untimely) response with (obviously waived) objections doesn't count as "substantial compliance" with the CCP. You've just got to answer. No objections.
The trial court thinks so as well, and deems the RFAs admitted. Which in turn results in plaintiff losing at trial.
(There's a "fourth strike" as well, by the way. Over a year later, plaintiff moves for leave to withdraw the deemed admissions -- which Section 2033.300 allows -- but utterly fails to satisfy its requirements.)
Were it me, I'd be just fine with this result. Yes, we want people to have a trial on the merits if they can. But we also need lawyers to comply with the rules, and have the process proceed like it should. This was not just a one-off mistake. This was a consistent and entirely inexplicable failure to follow even the most basic of requirements -- ones that even any first-year associate knows full well. Sorry, plaintiff. Go ahead and sue your lawyer. But this particular lawsuit, in my view, is properly dismissed.
By contrast, the Court of Appeal reverses. It's fine to impose monetary sanctions, it says. But despite the inclusion of (clearly waived) objections, plaintiff's responses were in "substantial compliance" with the rules, so the trial court had no ability to deem the RFAs admitted.
A gift to bad lawyers (and their clients), to be sure. But not one I would have tendered.
But, again, that's because I'm way too mean.
Montana passed a statute during the height of COVID that prohibited anyone from requiring vaccination; e.g., for employment or to enter an establishment. "This means that a private pediatrician cannot ensure that her staff is vaccinated for measles before interacting with newborn patients;[FN] a geriatric specialist cannot ensure influenza or shingles vaccinations; and an HIV clinic cannot ensure bacterial pneumonia vaccination. [FN:] The Center for Disease Control explains, 'Measles is highly contagious. If one person has it, up to 9 out of 10 people nearby will become infected if they are not protected.'"
The Montana Medical Association sued, claiming that Montana's statute was preempted by federal law. The district court agreed. Today, the Ninth Circuit reverses.
Judge McKeown writes a super interesting concurrence, by the way, that discusses at length the Supreme Court's oft-criticized jurisprudence regarding facial challenges. For those readers who aren't already well-versed in this field, I highly recommend it. It's scholarly -- almost like a law review article -- much much, much more concise: ten pages total. Definitely worth a read.
It seems like the Court of Appeal is gradually becoming more like the Ninth Circuit.
Sadly.
I feel like most of the cases with the caption "Union Pacific R.R. v. Superior Court" are from an earlier century -- say, the 1800s. That's definitely when railroads were most heavily involved in litigation, and that's where most of the railroad cases we read in law school come from. (Maybe early 1900s as well.)
But this one is definitely a product of a more modern -- post-automobile -- era. As well as one with probably even greater significance to ordinary landowners than to any particular railroad.
The question presented is whether a landowner who owns property that abuts a public street is liable when cars on that street crash, veer off the street, and hit a tree located on the landowner's property. That's what happened here, and there's little doubt that hitting the tree substantially increased the resulting injuries to the driver.
Are you liable for letting a tree grow on your property when it might injure someone who veers off the street (perhaps, as here, allegedly through no fault of their own)?
I think I'm fairly on board for that result. The issue is whether there's a duty under those circumstances; that in turn involves balancing a ton of different factors. On the whole, the Court of Appeal's opinion seems right to me. Yes, we could -- if we wanted to -- impose a duty on people with respect to trees on their property, and, yes, that might decrease (for some crashes) the resulting injuries. But I'm not sure it's worth it, and the resulting rule might well go too far. For one thing, personally, I like trees; they're good for the environment. (Plus they're pretty.) For another thing, if we impose a duty, I'm worried the resulting rule would go too far. Most of us -- or at least most landowners -- own property that abuts a public street. Most of us also have things that might increase injuries to someone who veered off that street and came onto out land; a tree, a concrete wall, a parked vehicle, or the like. It's just too much, I think, to hold that we all have a duty to minimize those common (but admittedly potentially injury-causing) obstructions. When applying the relevant balancing test, I tend to agree that imposing a general duty probably just goes too far for me.
That said, Justice Snauffer somewhat lost me -- at least in terms of persuasive value -- at around page 28 of the opinion, and continuing to around page 32. There, Justice Snauffer articulated at length his view that imposing a duty in such settings might well constitute an unconstitutional "taking" of private property without just compensation.
I don't agree with that. There are lots of regulations that restrict what you can do with your land. Some of them (e.g., zoning and environmental rules) are infinitely more onerous than any duty that even possibly be at issue in the present case and yet are entirely permissible. Others are directly relevant to public safety and entirely permissible notwithstanding the view that you're allowed to do on your own property whatever you want. You may well, for example, want to set a spring gun on your property to deter or incapacitate would-be criminals. Tough luck. We can 100% permissibly prohibit that, and it's not an impermissible taking. So too here.
If we rationally concluded that huge trees right near a fast-speeding highway were injurious to public health, well, sorry, then you can't grow them. Ditto, by the way, if you want to put a half-dozen spears on your property pointed right towards the road. Yep, it's your land. Nope, you can't do that, and any claim that such a prohibition constitutes an illegal "taking" should (and would) fail.
So I'm on board for the result, but part of the underlying analysis actually pushed me in the other direction, rather than ostensibly supporting (as was the point) the opinion's conclusion.
Maybe I'd go the other way, in this particular case, if there was zero reason for the tree being there, or if it was literally right next to the road (as opposed to 20 feet from it) and the road was a super-fast and oft-crashed freeway. Maybe. But, here, I think the Court of Appeal gets the result right.
Even if its analysis, in places, might go a little too far.
Whenever you might think that your family life contains a bit too much drama, feel free to compare your situation to this one for a little perspective.
Yikes.
There's a fight between Judge Sung and Judge Collins as to whether someone who has filed a Chapter 13 bankruptcy petition has an absolute right to dismiss that petition -- which is what the statute facially says -- even if, in truth, they don't satisfy the requirements of Chapter 13. Judge Sung says "yes" whereas Judge Collins says "no". Judge Forrest agrees with Judge Sung, so after this opinion, the answer is Yes. At least in the Ninth Circuit.
Okay. Definitely important for those who practice bankruptcy law. Less so for the overwhelming majority of us, who do not.
What struck me most about the case, though, was the tenaciousness of the party opposing the dismissal here.
The debtor was someone who had (allegedly) stolen confidential information and other stuff from his employer. The employer sued him in state court and obtained a $200,000+ judgment against him way back in 2000. That's not a huge number, and it's against an individual, so it's tough to actually get the money, even after obtaining a judgment. But even after "years of litigation" to get that award (and incurring the undoubtedly large costs and fees required to do so), "[f]or over a decade, TICO unsuccessfully attempted to collect this judgment from Powell [the debtor]." Which presumably required the expenditure of yet more costs and attorney's fees by the employer.
Then, in 2021, the debtor files his bankruptcy petition. Which the employer then actively fights, not only in the bankruptcy court, but then in front of the Bankruptcy Appellate Panel, and then here, in the Ninth Circuit.
There's no way that this is an economically rational decision. The employer has got to be spending way more money fighting this thing than they're ever going to actually collect from the guy. Particularly since, thus far, they've consistently been losing -- in the bankruptcy court, the BAP, and, today, in the Ninth Circuit.
So I'm thinking that the employer must just hate the guy. Want to make his life miserable. Want him to have to fight a quarter-century fight as retribution for the stuff he stole long ago.
They've got a judgment. They're entitled to do that if they want.
Just don't think that it's actually worth it. Money-wise, anyway.
I bet you get paid a ton of money for convincing the Court of Appeal to reinstate a $120 million jury verdict against Chevron notwithstanding the trial court's grant of a new trial.
But you probably also get paid a ton of money for convincing the California Supreme Court to grant review and decide whether the Court of Appeal was correct.
Probably even more if you eventually win in the California Supreme Court. TBD.
I get it. You've got to say that a statute is "ambiguous" before you can do what makes sense. Because everyone's persuaded by the contemporary mantra that if the text of a law is clear, you've got to follow it. So Justice Weingart says that the meaning of this statute is unclear, and hence does what he thinks makes the most sense in this context.
But, with all due respect, the words of the statute seem pretty darn clear to me. Even though I'm on board with what Justice Weingart ends up doing.
There's a really rich guy -- someone who makes $2 to $3 million a year -- who's got a very disabled 34-year old son (with autism) who's incapable of supporting himself. The son gets around $12,000 every year in disability benefits, but that's hardly enough to live on -- and, in any event, he's not capable of living on his own. So he lives with his mother.
Mom and Dad are divorced. Normally, once a child reaches a certain age, he's on his own. But Section 3910 of the Family Code (understandably) makes the parents of an adult child “who is incapacitated from earning a living and without sufficient means” financially responsible for maintaining that child “to the extent of their abilit[ies].”
So, normally, Dad would fairly clearly be required to support the son (at least in part), because he clearly has the "ability" to do so given his wealth.
But there's this other statute, Welfare and Institutions Code section 12350. A statute that contains an express exception to Section 3910 of the Family Code. Recall that the son gets certain disability benefits from the state. Here's what Section 12350 says:
“No relative shall be held legally liable to support or to contribute to the support of any applicant for or recipient of [such] aid.”
It repeats this same exception later in that same statute:
“Notwithstanding [s]ection[ ] 3910 . . . of the Family Code, . . . no demand shall be made upon any relative to support or contribute toward the support of any applicant for or recipient of [such] aid.”
There's zero doubt that the son is the recipient of such aid. Similarly, there's zero doubt that Dad is a "relative" and that there's a demand here that Dad contribute to the support of the son.
So, under the clear and express words of the statute, Section 12350 is a defense.
The Court of Appeal nonetheless holds that it's not. The purpose of the statute, it says, is to make sure that the government doesn't provide aid to someone disabled and then go after the relative to reimburse it for the resulting aid.
And I completely agree. That's the point of the thing.
But that's not what it says. It says that NO ONE can demand that the relative "contribute to the support" of such a person. Including but not limited a demand under Section 3910 of the Family Code, which is undeniably the basis of the request here.
So under the clear and -- in my mind -- 100% nonambiguous command of the statute, Dad can't be ordered to contribute to the support of the child if he doesn't want to do so.
(Now, of course, I think he should morally be willing to do so, but that's a different issue. Dad likely is willing to contribute something, and has made various settlement offers in the litigation. The question is whether Dad can be compelled by the state to contribute amounts that he's unwilling to pay.)
The text of the statute is not ambiguous. The text clearly commands a single result: Dad wins. So if it's required that we find the statute textually ambiguous to hold otherwise, well, sorry, that's just not the case. Even if we might want it to be.
To reiterate, I'm persuaded by Justice Weingart that the purpose of the statute was to stop only the government from demanding reimbursement. But that's not what it says. The Court of Appeal's efforts to find textual language that makes the otherwise-clear statutory provisions "uncertain" are, in my mind, totally unpersuasive. The actual WORDS of the statute are clear.
Now, to me, that's not the end of the thing. I'm fine, in particular cases, to conclude that the Legislature used loose language -- by "loose," I mean inaccurate, not unclear -- and interpret those provisions in line with what I think the Legislature intended.
But that's Old School. It's not what we almost uniformly purport to do in the modern era. Thank you, Justice Scalia et al.
Even though I think we might still, in fact, do so. Including here. Because saying that there's an ambiguity allows us to do the right thing. The thing that both was intended and that's better for the universe. But since we're required to say that the statute is ambiguous before we do that; well, okay, so we'll say the statute is ambiguous.
Even when it's not.
It takes Judge Forrest only four pages to write an en banc opinion that explains that prior circuit precedent that held that the "first-to-file" rule in qui tam cases was "jurisdictional" isn't actually jurisdictional in light of intervening Supreme Court precedent. Other circuits (a minority) disagree, but there's a circuit split, and she concisely explains why the en banc court decides to go with the majority view on this issue.
By contrast, Judge Forrest also writes a concurring opinion, joined by only one other judge on the en banc court (Judge Bumatay), that takes up over triple the space -- 14 pages -- in an expansive exegesis about what does and does not count as dicta and why circuit dicta (even from an en banc court) shouldn't be binding, even if "incidental" (but not technically "necessary") to the result.
There's a lot there. Though perhaps somewhat ironic that this discourse about why dicta shouldn't be followed and is akin to an advisory opinion is contained in a nonbinding concurrence that's unnecessary and doesn't change the result.
But food for thought.
Police officers make an obviously pretextual stop -- the defendant's a known gang member, and he doesn't have front plates on his vehicle -- and wait to pull him over in order to give the canine officer (who they called before the stop) time to arrive. The canine alters on the driver's side door, and after searching, the police then find a gun in the center console, so arrest the defendant for being a felon in possession.
The trial court suppresses the evidence because the police waited to pull the guy over, but the Court of Appeal reverses. You're allowed to have pretextual searches, the Court of Appeal says, and the relevant clock only starts ticking for an illegal "prolonged detention" once the guy's actually pulled over, not at the point you "decide" you're going to pull him over (but wait a bit so the dog can start making its way over).
All that makes doctrinal sense, at least according to existing precedent. So no qualms there (again, at least under existing law).
But I'll add one additional point -- not about doctrine, but about the real world (and, parenthetically, how it relates to doctrine).
The Supreme Court doesn't allow the police to "prolong" a traffic stop for an additional period of time to get a canine, interrogate the driver about unrelated (potential) criminality, etc. So you can only detain the driver for the "normal" period of time it takes to write a ticket.
One way around that is the way the police employed here -- just wait to stop you until the dog's nearby. But you can't complain, because your "stop" was just the normal length.
But the other way around it is to make the "normal" period of time it takes to write a ticket as long as possible. You've presumably seen a traffic ticket -- perhaps even gotten one (or several) yourself. They aren't even a page long. It's notecard-sized or so. With little boxes to check etc. Sure, you might have to run a records check first, but how long do you think it takes to fill out those little boxes?
Maybe -- MAYBE -- two minutes. Three at ABSOLUTE most. Probably a fair piece less if you're an actual police officer who's written literally thousands of them in your lifetime.
But if you're called to the stand to testify as to how long it "normally" you to write a ticket, what do you think you say. Remembering, of course, that that's the standard for whether or not you've engaged in unconstitutional "prolonged detention" such that the stop is impermissible and your arrest and conviction gets thrown out.
Here's what you say:
"Writing a citation can take him anywhere from 5 to 10 minutes."
Since it "normally" takes the officer "from 5 to 10 minutes" to write the citation, there was no illegal "prolonged detention" because the canine dog here arrived three minutes after the stop and alerted to "drugs" in the vehicle exactly 10 minutes after the stop -- so purportedly the canine search in no way "prolonged the detention" since it was going to take the officer 10 minutes to fill out the citation in any event (even without the dog).
I'm sure that's what the officer testified to, and, yep, the trial court (and Court of Appeal) relies upon that testimony. What certainly did not happen here is that the officer took his own sweet time to fill out the citation while waiting for the dog to arrive and then the dog alerts on the "drugs" at just the exact moment that it "normally' takes the officer to fill out the citation form.
Nope. Definitely not.
(I'm putting the word "drugs" in quotes, by the way, because there's literally no mention anywhere in the opinion of there ACTUALLY being drugs in the vehicle. The only conviction is for the firearm in the center console. So unless that's what the dog was smelling -- no small feat, I would imagine -- the stop was justified because (1) it took the "normal" period of time, (2) the dog "actually" smelled drugs and alerted accordingly, but (3) oops, no drugs, but yay, firearm, hence the arrest of a known member of a gang via a pretextual stop.)
The point is simply this: There are laws, and then there are ways around those laws. Criminals aren't the only ones who have figured that out.
From this domestic violence TRO opinion by Justice Rodrriguez:
”In an October 2021 e-mail — titled “Shitty human” — [D.V.] wrote, “You are not a good human being in any way shape or form. Your characteristics are all negative and the way you teach your kids is disgusting. Great tits though.”
I'm not sure why D.V. felt the need to add that last line. It's not like the recipient would read the rest of it and then say "Oh, well, at least it ended on a good note; everything's fine, then."
My thought is that the various Ninth Circuit judges here are each trying to make a point.
Judge Bumatay, joined by five other judges, would grant the petition for rehearing en banc, and explain at length (35+ single-spaced pages) why they think the panel got the decision wrong and (perhaps) why the Supreme Court should take the case up and reverse. This isn't unusual, but it's an increasing theme these days.
There's also a concurring opinion that agrees with the panel and with the denial of en banc review. That's not all that surprising either; you see those on occasion as well.
But this one's a bit unusual, for two reasons.
First, the concurrence is authored by all three of the members of the original panel. They, of course, agree with what they previously decided. But usually it's just one of them listed as the author. This time it's all three, jointly. Sort of an exclamation point.
Second, as is typical, some other Ninth Circuit judges join the concurrence as well. Sometimes you see two, or in high profile cases, even six or so. This is not surprising. After all, a majority of the judges, by definition, didn't want the case taken en banc. So sometimes the individual judges join the opinion that explains why -- but usually, most of them don't, thinking that it's unnecessary.
How many judges join the opinion here that concurs in the denial of rehearing en banc?
Sixteen.
That's a huge number. More -- much more -- than you typically see.
And it's not even a super high profile case. It's about tribal jurisdiction in an insurance case. An issue that's hardly going to make the front page of your local newspaper or become an issue in an upcoming election.
It's not just that, though. Typically, the judges that join the opinion concurring in the denial of rehearing are those active judges who voted against rehearing en banc. This time, though, the concurrence includes multiple senior judges as well -- including judges who didn't even have a vote in the en banc call.
Unusual, to say the least.
I think the liberal wing of the Ninth Circuit is trying to send a message here; namely, that this wing isn't going to sit back like usual when particular judges on the conservative side pen lengthy dissents from the denial of rehearing en banc. Instead, on occasion, at least, they're going to join the fight and show the flag. If only by identifying the number of votes on the other side -- particularly when that number is substantially larger than the number of votes recorded for the competing position.
I also sense a little bit of frustration here. Recorded in (somewhat) real time.
I quite literally thought I was misreading this opinion -- or that it accidentally used the wrong word -- when I first read it.
Nope. That's actually what the lawsuit's about.
Here's how the opinion begins:
"The City of Gridley operates an electric utility that provides electricity to local residents. In this case, real parties in interest (plaintiffs) challenge the city council’s approval of reduced electric rates for residential users in September 2020. Plaintiffs believe these rates—which were in effect for about three years—exacted a tax from residential users . . . ."
Wait. Plaintiffs allege that the reduction of electricity rates constitutes the imposition of a tax? Surely the opinion means to say that the City increased electricity rates, and that that's a tax.
No. Plaintiffs are indeed challenging the City's decision to decrease electricity rates.
The trial court refused to grant summary judgment to the City. The Court of Appeal heard the City's writ and reverses.
Reducing electricity rates is not imposing a tax. Even if you don't think the reduction goes far enough.
Sounds right to me.
Seven judges on the Ninth Circuit join this concurrence from the denial of rehearing en banc, which likely reflects a little bit of historical (and continuing) annoyance at Judge VanDyke. Here's a snippet:
"In United States v. Perez-Garcia, 96 F.4th 1166 (9th Cir. 2024), we unanimously held that the Government could temporarily disarm two criminal defendants—Jesus Perez-Garcia and John Fencl—pending their felony trials consistent with the Bail Reform Act of 1984 and the Second Amendment. Perez-Garcia stood accused of importing eleven kilograms of methamphetamine and half a kilogram of fentanyl through the southern border. Id. at 1171. Fencl faced up to seventy years in prison for felony unlawful possession of three unlicensed short-barreled rifles and four unlicensed silencers. Id.
Because neither Fencl nor Perez-Garcia remains subject to any pretrial release conditions, all agree that “there is now no live controversy before our court regarding either the merits of the underlying case or the propriety of the [firearms condition].” Washington v. Trump, 858 F.3d 1168, 1169 (9th Cir. 2017) (Berzon, J., concurring in the denial of reconsideration en banc). And “[i]n our system of government, courts have ‘no business’ deciding legal disputes or expounding on law in the absence of such a case or controversy.” Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). Nevertheless, Fencl and Perez-Garcia filed a petition for rehearing en banc seeking the concededly “unusual remedy” of equitable vacatur. See Dkt. 31, at 3. Today, our court correctly denied the petition.
A single judge of our court dissents from the order denying the petition for rehearing en banc. I join my colleagues who have voiced concern about these so-called “dissentals,” which often present a “distorted presentation of the issues in the case, creating the impression of rampant error in the original panel opinion although a majority— often a decisive majority—of the active members of the court . . . perceived no error.” Defs. of Wildlife Ctr. for Biological Diversity v. EPA, 450 F.3d 394, 402 (9th Cir. 2006) (Berzon, J., concurring in denial of rehearing en banc); see also Marsha S. Berzon, Dissent, "Dissentals," and Decision Making, 100 Cal. L. Rev. 1479, 1491 (2012).
The dissent in this case, though, is particularly curious. In a case where—everyone agrees—we lack jurisdiction to rehear the merits of the appeals, one judge has taken it upon himself to write a 61-page advisory opinion. Only about 5 of those 61 pages purport to address the relevant question at hand—what exceptional circumstance, if any, renders en banc review appropriate? The rest details Judge VanDyke’s views of the Second Amendment and his disagreements with the three-judge panel decision. As we have long recognized, critiques of this nature are irrelevant because “[w]e do not take cases en banc merely because of disagreement with a panel’s decision, or rather a piece of a decision.” Hart v. Massanari, 266 F.3d 1155, 1172 n.29 (9th Cir. 2001) (quoting E.E.O.C. v. Ind. Bell Tel. Co., 256 F.3d 516, 529 (7th Cir. 2001) (en banc) (Posner, J., concurring)).
I concur in the denial of rehearing en banc, and I write separately to make two brief points. First, this appeal is clearly unworthy of en banc review. Second, the Supreme Court’s recent decision in United States v. Rahimi, 144 S. Ct. 1889 (2024), vindicates the analysis in Perez-Garcia."
Everyone's free to write pretty much whatever they want, of course. That's the beauty of (amongst other things) the First Amendment.
But maybe there's a time and place for everything. Judge VanDyke thinks that the appropriate place is in a dissent from the denial from rehearing en banc. Judge Sanchez (the author of the concurrence) is of a contrary view.
For his part, Judge VanDyke's fairly annoyed at his colleagues as well. Here's a snippet of what he has to say on that front:
"For a majority of the judges on the Ninth Circuit, “any loss in a Second Amendment challenge at the Supreme Court is celebrated as a tool to further our artificial cabining of Bruen.” Duarte v. United States, 108 F.4th 786, 788 (9th Cir. 2024) (VanDyke, J., dissenting from the grant of rehearing en banc). Now, barely weeks after I levied this pointed charge in my Duarte disgrantle, our circuit seems determined to prove I’m right. The court not only declines to vacate a lengthy, deeply flawed, and wholly unnecessary Second Amendment opinion issued long after the defendants’ constitutional challenges became moot. It also piles on even more advisory commentary in a concurral, this time about United States v. Rahimi, 144 S. Ct. 1889 (2024)— a decision released months after the panel issued its opinion—and what Rahimi means for the analogical approach required by Bruen moving forward.
The observation I have made repeatedly in cases like this keeps being validated: our circuit is “more interested in sidestepping than following the [Supreme] Court’s Second Amendment precedent” by “latch[ing] onto phrases” and “conveniently overlooking such bothersome details like the government’s burden of supplying relevantly similar historical analogues.” Duarte, 108 F.4th at 788 (VanDyke, J., dissenting). Add this case to the top of the list. This latest effort stems from a particularly enticing opportunity for Second Amendment shenanigans, as the panel first rushed to issue a terse, unreasoned order affirming the district court. That order deliberately moot-proofed the panel’s ability to issue what was effectively, if not technically, an advisory opinion long after subsequent events overtook the defendants’ claims. More than a year later, the panel then made the most of the opportunity it had generated for itself, announcing as much new law as possible in a moot case where it was wholly unnecessary to do so, and then using mootness as a shield to argue against en banc review. Judge Reinhardt would be proud. . . .
I must say I respect the feisty energy emanating from my concurring colleagues’ attempted pushback. But there is that thing about living in glass houses and throwing rocks. Consider what the panel did here: (1) it took the highly unusual step of quickly issuing a summary decision in a case that was likely to become moot, which served no discernable purpose except to ensure the panel could still issue its opinion long after doing so became unnecessary; (2) it later issued that lengthy and needless opinion notwithstanding the fact that everyone—including the panel—agreed the case was moot; (3) it unnecessarily provided redundant alternative rationales in its opinion deciding important Second Amendment issues in this circuit that could have far-reaching effects well beyond just this moot case; and (4) it deliberately reached outside the history and resources provided by the government in this case in an obvious attempt to help the government meet its burden rather than hold the government to it. That many off-panel members of the court now gratuitously rush to signal their agreement with the panel’s gratuitous legal reasoning in a concurral strangely criticizing my disagreement as gratuitous really deepens the irony. Projection, anyone?"
That's a pretty bitter -- and personal -- attack. One that includes throwing in a seemingly gratuitous slam on a long-dead colleague (Judge Reinhardt) to boot. (Conflict disclosure: I clerked for Judge Reinhardt. It's not wrong to say that he felt strongly about particular things. Though in my experience, he worked as hard to get his colleagues to not say unnecessary things that he thought would be counterproductive -- even things he agreed with -- as he did to say things that he thought were right. Regardless, it seems kind of unnecessary to zing the guy. My usual rule is that comparing living people to dead people -- be they Adolph Hitler, Justice Taney, Joe McCarthy, etc. -- rarely advances the ball.)
In any event, some fairly vitriolic stuff out of the Ninth Circuit today.
Given that it's an entirely for-profit company, I think you'd be surprised to learn that X (formerly Twitter) actually engages in speech that's allegedly noncommercial.
But so holds the Ninth Circuit today, in an opinion by Judge Smith that's joined by Judges Bennett and Johnstone.
I wouldn't be at all surprised if this isn't the last word on the matter. The opinion's about X's content moderation policies -- quite a hot topic, these days. I suspect you're going to see some votes to take this case en banc and perhaps some Supreme Court interest as well. (That said, because conservatives tend to think support X's views on these matters, as well as X generally, there's likely to be a fairly strong political split in how the various judges approach this thing.)
Here's another questionable use of systemic resources.
Defendant pleads guilty to misdemeanor vehicle theft. He gets sentenced to three years probation. The victim wants $440 in restitution for gas to court etc., but there's never a restitution order entered, nor any request for restitution submitted to defendant or his counsel. At sentencing, the court reserves jurisdiction over any restitution, but during the entire three-year restitution period, no one ever does anything about getting a restitution order; no request, no service, nothing.
Defendant successfully serves his probationary period, so the probation office recommends dismissal of the misdemeanor count -- the usual way these things are resolved. But the prosecutor's office says that the defendant never paid the $440 restitution order, and the defendant (correctly) responds that no such order was ever entered nor any formal request even made.
The trial court says it's not going to dismiss the charge since restitution was never paid, and this appeal follows. The Court of Appeal reverses. As Justice Chou explains: "It is one thing to deny expungement because a defendant has not complied with an order to pay a specified amount as a condition of probation; it is quite another to deny expungement because the defendant has not paid an amount he was not ordered to pay and did not even know about before his probation expired."
Makes sense.
But here's the thing that doesn't make sense: That we're having this whole fight over $440.
California had to pay for (1) defendant's appointed appellate counsel (plus his counsel in the expungement proceeding), (2) the five lawyers on the caption in this case from the Attorney General's Office, and (3) the salaries of all the people in the Court of Appeal who worked on this matter. I promise you that the costs of this appeal were WAY in excess of $440.
Wouldn't it have been far easier and more efficient for the A.G.'s office to just write a check to the victim for $440? (Money, I might add, he's now not getting after the A.G.'s office lost the appeal.)
I get that sometimes you spend money to advance a cause. But I'm not sure that this matter couldn't have been resolved more efficiently (and successfully) than how it ended up.
Over $440.
I did not know that there were unlicensed (illegal) strip clubs out there. In retrospect, I guess it makes sense. That way there are no rules. Drug use is fine, (presumably) illegal sex acts are fine, etc. This is another example of the maxim that if the public really wants something, someone will readily provide it. At least if the public's willing to pay for it, which, in this case, they apparently are.
I understand that different people -- and different cultures -- may have varying approaches to the issue.
Nonetheless, personally, I wouldn't want to be the individual remembered by history as one who filed a federal lawsuit and fought hard in an attempt to make cockfighting legal in the Commonwealth of the Northern Marianas Islands.
The City of Los Angeles asked for a new trial because, among other things, they subsequently discovered a videotape that allegedly conclusively establishes that the City wasn't liable. And maybe the video does indeed prove that fact.
But they didn't introduce that video at trial, and didn't even establish "due diligence" in trying to find out about it during discovery.
That's your lawyer's (and, here, client's) bad. No new trial for you.
Which means plaintiff gets to keep her $500,000 judgment.
One of the (many) potential downsides of downing a half a bottle of scotch after work in your typical evening at home is that you may become less capable of distinguishing the line between a consensual dominant/submissive relationship with a partner, on the one hand, and something far less legal.
Which may result, as here, in you spending the rest of your life in prison.
(Though maybe the defendant here knew what he was doing all along.)
I literally just edited a brief on this exact subject last week, so I know a fair piece about when non-signatories to an arbitration agreement can move to compel arbitration against a signatory, as well as whether that issue gets decided by a court or the arbitrator. The correct answer depends in part on what precisely the text of the arbitration provision says, and the doctrinal issues are not all that straightforward (or at least less straightforward, in my view, than it might appear to readers of this opinion by the Court of Appeal).
It's true, though, that not all non-signatories can successfully move to compel arbitration, and that in many cases, that issue gets decided by a court, rather than an arbitrator, even if there's a delegation clause in the underlying arbitration provision. Justice Wiley is also correct when he says that in deciding that issue, it's critical to look at the text of that provision, and criticizes some other cases for not including the relevant contractual language in their opinions.
Justice Wiley doesn't make that same mistake, and quotes the arbitration provision in full at the outset of his opinion. (For background: Plaintiff bought some groceries from Ralphs through Instacart, the Instacart contract contains an arbitration provision, Plaintiff subsequently sued Ralphs, and Ralphs moved to compel arbitration pursuant to Plaintiff's contract with Instacart.)
Here's what the arbitration provision says:
“Mandatory Arbitration: If we’re unable to work out a solution amicably, both you and Instacart agree to resolve through binding arbitration, rather than in court, any dispute, controversy, or claim arising at any time out of or relating to: (i) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (ii) access to or use of the Services, including receipt of any advertising or marketing communications; (iii) any transactions through, by, or using the Services, including any goods or services purchased or sold through, by, or using the Services; or (iv) any other aspect of your relationship or transactions with Instacart as a consumer.”
There's also a separate delegation clause that provides that any dispute as to arbitrability shall generally be decided by the arbitrator, not a court.
You can probably figure out the underlying textual dispute. Plaintiff contends that the arbitration provision only applies to disputes between him and Instacart, whereas Ralph contends that this provision applies to "any dispute" (including those with Ralphs) that "arise[s] out of or relate[s] to . . . any transactions through [Instacart] or . . . any goods or services purchased [] through Instacart," which these (allegedly) were since the dispute definitely involves the (allegedly false) price paid for the goods purchased through Instacart.
That's a complicated textual dispute, and you could see the arguments on both sides.
Here's the part I sincerely don't get, though.
Justice Wiley quotes the textual language of the arbitration provision in full, and reminds us that the text of that provision is critical (and, indeed, allegedly dispositive here). But here's the money quote at the end of page 7 of the opinion that explains why plaintiff didn't agree to arbitrate any dispute with Ralphs:
"With our italics, Instacart’s contract language was that the arbitration agreement 'applies to and governs any dispute, controversy, or claim between you and Instacart.' But Mahram had no dispute with Instacart."
Wait, what? That's supposed to be quoting the arbitration agreement -- the whole thing's in quotes. But what's in the quotes is not in the arbitration provision that Justice Wiley sets forth earlier in the opinion. the phrase "applies to and governs" appears nowhere in the opinion other than in the quote on page 7, and certainly not in the arbitration provision quoted earlier. (I double-checked: the word "applies" does not even appear anywhere else in the opinion other than in the quote on page 7.) Similarly, the only place the words "between you and Instacart" appear -- the ones that Justice Wiley emphasizes -- is in the belated quote, not in the original arbitration provision quoted in full at the outset.
So I'm legitimately confused. Does this quote come from somewhere else in the contract, somewhere never before mentioned in the opinion (and not in the original arbitration provision)? Or is this not an actual quote, but rather a purported summary of what the arbitration provision means (even though it's surrounded by quotes in the opinion)?
Maybe I'm missing something. Because if the contract actually said that the only thing that was agreed to be arbitration is what's listed in the quote on page 7, yeah, that's pretty good evidence that disputes with Ralphs aren't included. But if that language is not, in fact, in the contract, then you've got to go through the actual text and explain why Ralphs is wrong that, textually, the dispute indeed arises out of the purchase of goods through Instacart, so the arbitration provision at least textually applies to that.
Again, maybe there are two different arbitration provisions, or maybe what the Court of Appeal puts in quotes is not actually a quote. Those seem the likely possibilities, anyway. But I can't tell which is true, and it matters. Because the textual analysis is a lot more complicated if the contract doesn't actually contain that latter quote. (And is a lot easier if it does!)
I'm somewhat on board with the result the Court of Appeal reaches in this case, which affirms the denial of an attorney disqualification motion by the trial court. There are nonetheless certain portions of the opinion that seem both doctrinally wrong as well as substantially pernicious in other cases, at least to people (like me) who are seriously concerned with legal ethics.
Here, an indigent person called up a public interest organization (California Indian Legal Services) to seek its representation in a lawsuit she wanted to file against her brother regarding a property dispute. An intake advocate talked to her about the lawsuit but the organization ultimately declined to represent her because she didn't live in the relevant county (Inyo) that the organization served. She subsequently was able to find a different firm to represent her and filed suit, at which point the organization she had contacted agreed to represent her brother in that very same action, and she then moved to disqualify that entity.
The Court of Appeal held that disqualification was not required, in part due to the fact that it was a public interest organization (seems right - DQ motions are somewhat disfavored for such entities), because the only person plaintiff talked to at that organization was an intake advocate who has now left the place (also seems right - that'd make it easy to screen, as well as practically limits the risk of potential transmission of confidential information), and in part due to the limited scope and nature of the information conveyed to the intake advocate (ditto: we're not massively worried about this, at least as a relative matter).
So all that seems fine to me.
What bothers me about the opinion, however, is its casual disregard of certain types of confidences and assertion that certain material doesn't count as "confidential" in the context of potential representation.
Justice Ramirez (somewhat) rightly notes that Rule 1.18 -- the ethical rule regarding duties owed to prospective clients -- doesn't expressly define what counts as "confidential information" under the rule. (Though that's largely because Rule 1.18 incorporates Rule 1.6 and Section 6068, neither of which use that term either.) It nonetheless says that if the lawyer received material in "confidence" (or "secrets") from a client, the lawyer and the firm is disqualified --unless there's effective screening, which there wasn't here.
Where the Court of Appeal errs, in my view, is when it holds that the law firm here didn't receive any confidential information from the client.
It's quite plausible that Justice Ramirez is right that the "income" information that the prospective client revealed to the legal advocate doesn't really count because it was only to see if she qualified for legal services and wasn't relevant to the lawsuit. Ditto, perhaps, for the "already-public" background data about the underlying piece of property; I could see not disqualifying someone for that.
But the Court of Appeal goes on to say the following:
"As for the information regarding plaintiff’s statements that defendant exercised undue influence on Willet, that information could not be viewed as confidential where it related to the theory of recovery she intended to pursue, and which would have been disclosed in the pleadings. The case-related information was not confidential, did not risk any harm to plaintiff, and was not material to her action to quiet title, although some of the information was, in fact, included in her quiet title action. Therefore, it cannot be said that the information that was communicated to the intake advocate, as relayed to those responsible for the decision whether or not to accept plaintiff’s case, was confidential in nature, much less harmful to plaintiff."
That just seems clearly wrong to me. That information is crystal clearly "confidential information" that is privileged under Section 962 of the Evidence Code since it was communicated solely for purposes of the anticipated litigation and not contemporaneously disseminated to third parties. That the client might subsequently reveal those same facts in the litigation is entirely irrelevant. You can't ask someone in a deposition or at trial "What did you tell your lawyer about your case?" even if you limit that inquiry to topics or information that were subsequently revealed by you in the case. It's privileged. It's confidential and protected.
Plus, the whole point of both Rule 1.18 and the underlying privilege is that we protect this information to make sure that no one gets to critically explore whether (or to what extent) the stuff that you said to your lawyer is consistent with what you later say under oath. Imagine that a prospective client tells the lawyer (as she might well have): "Yeah, my mother was a little bit out of it sometimes, but she was on balance coherent the majority of the time, and at least for the 5 minutes I talked to her, she seemed clear as far as I could tell." During the client's deposition, she might well have a much more forceful and less ambiguous recitation of those facts: "My mother was almost always coherent, and during the entire half hour I talked to her, she was clear as a bell." Do you think you're permitted to discover the quite-a-bit impeaching statement the client gave to her lawyer? No way. It remains fully confidential and protected -- and rightly so, because we don't want to chill attorney-client communications since we're worried that they might otherwise be less than forthright, with disastrous consequences.
The fact that the subject matter of the communication was later raised in the pleadings (or anticipated to be used therein) is totally irrelevant. It remains protected. So too here.
And that's true equally with both prospective and current clients. Once you, as a lawyer, have heard the unvarnished recitation of facts from the prospective client, you can't obviously can't ethically represent the adverse party in that exact same litigation. 'Cause if you could, you could -- and would -- surely ask (and know to ask) the obvious follow-up questions: "Didn't you in fact previously say, much earlier in time and before this litigation commenced, that she was only coherent a 'majority' of the time (rather than 'almost always', and say that she was only purportedly 'clear' for 5 minutes, rather than the half hour you referred to in your current sworn testimony?"
We don't allow that. If we did, you wouldn't be honest with your prospective lawyer. And you'd feel quite accurately unjustly turned upon if your would-be-lawyer used what you told him against you in the litigation.
The Court of Appeal repeats that same mistake, in my view, later in the opinion when it says: "We cannot consider communication of the nature of plaintiff’s anticipated action against defendant to be confidential information where plaintiff was seeking representation in anticipation of filing a lawsuit based on that information in court. Plaintiff’s cause of action alleges that any transfer of the title to the property in question is “void ab initio” without referring to any deed in favor of defendant, while also alleging that defendant is an ex-felon whose testimony in court would be subject to impeachment. It does not require prescience to predict that the basis of these allegations would be explored in discovery in this litigation. Plaintiff cannot reasonably assert that the preliminary information about the “issue” in the case was a confidential communication."
I could potentially agree that obviously public information isn't confidential and so doesn't necessarily require disqualification. But that's almost certainly not the only stuff that plaintiff revealed. And as an important doctrinal matter, it matters zero (in my view) that the information that you convey to your lawyer is information that you reveal "in anticipation of filing a lawsuit based on that information in court." When I tell a lawyer that someone punched me half a dozen times and it hurt like an 8 on a scale of one to 10, that stuff's privileged and confidential regardless of whether I presently intend to say the exact same thing (or perhaps something a little different) if asked that precise question at a deposition or at trial. My adversary doesn't get to learn what I told that would-be lawyer by either asking me at a deposition what I told him or by the mere expedient of hiring that attorney herself.
That's my view, anyway. I'd substantially narrow the opinion accordingly.
This from someone who occasionally teaches Professional Responsibility and takes this stuff seriously.
Today's California Supreme Court decision finally resolves the oft-litigated issue of what appellate courts should do in dependency cases when the trial court has conducted an inadequate inquiry under the Indian Child Welfare Act. The answer -- over the dissent of two justices -- is: conditionally reverse.
Both the majority and the dissent make good points. That's in part why there was such a solid split in the Courts of Appeal. So both opinions are definitely worth reading.
The opinion is also a great example of why one can't merely read the majority opinion to ascertain the "holding" of the case. Sure, the majority opinion here gets 5 votes, so it's clearly the law.
But the concurring opinion expressly agrees with Part II of the dissent, which involves "the threshold question of what constitutes an adequate initial inquiry under Cal-ICWA." Two justices agree with that portion of the dissent (Justices Kruger and Corrigan) even though they also join the majority opinion, and two justices agree with the dissent in toto (Justice Groban and Chief Justice Guerrero).
Add those all together and that makes four. Which is a majority of the Court.
So while that's technically dicta, it's still incredibly meaningful. Which what a majority of the Court has said is a pretty telling indication of what the respective Courts of Appeal should do in the future.
Were I living in Ecuador, I might well find it exceptionally enticing to be offered $38,000 -- four times what I usually make in a year -- to pilot my small little panga boat from Ecuador to somewhere offshore Mexico.
Would I know for sure that the boat would contain cocaine? Maybe not, though I imagine I'd certainly suspect as much.
Would I know that I'd be carrying $28 million worth of cocaine? Probably not. But once those armed guards in Ecuador led me to my boat and I saw the stuff, I bet there's no way I could possibly back out.
Would I know that, if caught, even without any criminal history, I'd receive a full 15 years in prison as a result? Probably not.
But that's indeed what the defendant here received.
Defendant says he was a minor player, but both the district court and Ninth Circuit disagree.
P.S. - People often (understandably) critique judges who cite Wikipedia, as the opinion does here for its definition of what a panga is. The term is in the dictionary. It's also described in numerous other published opinions, including this one. Personally, I'd have probably gone with one of those. (Not that it matters, of course.)
It's got to be a somewhat depressing day when you sue various defendants, none of them ever show up, you request their default (which no one even opposes), and the district court still dismisses you lawsuit.
It's got to be even more depressing when you then appeal, no one opposes the appeal, and you still lose in the Ninth Circuit. Your only opposition being, apparently, the panel.
Yet that's what happens today. In a unanimous published opinion, no less.
One last thing. There was never any opposition filed to anything, and at issue is simply a request for a default judgment, and yet this lawsuit has been pending for eight years -- since 2016.
An unusual set of circumstances, to be sure. And one with which I'm quite confident plaintiff and his counsel are less than pleased.