Mamer v. Weingarten (Cal. Ct. App. - Jan. 17, 2025)

I'm going to have to add today's opinion to my current seminar class (taught Friday mornings) on the Law of Intimate Relations. The Court of Appeal holds -- seemingly for the first time -- that, in California, a trial court has discretion to order a biological mother to reimburse the biological father for one-half of the costs of an in vitro fertilization procedure they used to conceive a child.

To be clear, the Court of Appeal doesn't say that the trial court is required to make such an order; only that it may permissibly do so in its discretion. Moreover, here, the mother allegedly agreed to pay half of the IVF costs -- though the Court of Appeal holds that this agreement is only one of the various factors that the trial court might consider in exercising its discretion. (Accordingly, it may well be that, in a different case, a mother might perhaps be permissibly ordered to reimburse these costs even if she never agreed to do so.)

The Court of Appeal holds that the relevant statute authorizes such an order, and it's easy to see why. Section 7637 of the Family Code provides: "The judgment or order may direct the parent to pay the reasonable expenses of the mother’s pregnancy and confinement.” Well, the costs of IVF do indeed facially seem to be part of the "reasonable expenses of the mother's pregnancy." So you can see why the Court of Appeal holds that the statute means what it says.

Mind you, sometimes, we create public policy exceptions to otherwise clear statutory mandates. For example, one of the topics we discuss in my seminar is whether a parent can sue the other parent for fraudulently saying they're on birth control when they're not, and thereby recover the expenses that the defrauded parent was required to pay for the child. There's a rule against fraud, of course, but lots of cases hold that our public policy desire for child support, or other social principles, trump the usual rule in this context. You could see a similar argument here, and one might argue that we don't want fathers being able to sue for IVF repayments because it might reduce (or at least offset) child support payments made to the mother, it might be inequitable since both parties consented to the creation of the child (somewhat akin to an "assumption of the risk" argument), etc.

But, at least for now, repayment for half of the expenses of IVF is on the table.

Cole v. Superior Court (Cal. Ct. App. - Jan. 15, 2025)

You probably remember (perhaps vaguely) from constitutional law the difference between how laws against a suspect class are treated (for which strict scrutiny review applies), a non-suspect class (for which rational basis review applies), and a quasi-suspect class (for which intermediate scrutiny applies). By applying different scrutiny to laws against different groups, the judiciary's doctrinal jurisprudence attempts to ensure that everyone does indeed receive equal protection of the laws while nonetheless authorizing the government to make permissible and supportable distinctions between different groups.

This tripartite jurisprudence, however, requires us to figure out which groups belong in which category. An undeniably difficult task.

Racial distinctions get strict scrutiny. Understandably so. (Ditto for alienage and national origin.) Gender distinctions receive intermediate scrutiny. (Same for illegitimacy.) Lower-level distinctions -- for example, laws that distinguish between different types of hot dog vendors -- receive only rational basis review.

Deciding which category different groups falls into involves several different factors, but the biggest (and most expansive) one is basically how these groups have been historically (mis)treated. The bigger the history of misconduct and discrimination, and the more the particular group has historically been excluded from the overall public sphere, the higher the level of governmental review.

Which makes sense. The more we know that a group is historically discriminated against, the more we should be cautious that existing governmental distinctions continue -- or are a vestige of -- that historical discriminatory treatment.

This Court of Appeal opinion involves the question: What category of equal protection review applies to laws that differentially affect people with an intellectual disability (i.e., in the language of old opinions, the "mentally retarded")? Strict scrutiny? Intermediate review? Rational basis?

If you were on the California Supreme Court (or the United States Supreme Court), what would you decide?

There's no doubt that, like race or gender, developmental disabilities are fairly immutable. There's also a fairly long and substantial degree of discrimination. Indeed, at one point in our nation's history, the U.S. Supreme Court even approved the involuntary sterilization of individuals based upon that characteristic.

So how does this group compare to race-based, or gender-based, or other group-based discrimination, in your view? What level of scrutiny would you apply given this historical (and perhaps contemporary) treatment)?

The Court of Appeal says that rational basis review applies.

Do you agree?

L.W. v. Audi AG (Cal. Ct. App. - Jan. 15, 2025)

If you were a huge nerd in law school and are just itching for more personal jurisdiction hypotheticals, take a look at today's opinion from the Court of Appeal, where the issue is whether Audi AG -- which is the German parent -- can be sued in California for selling a defective Audi in California through its U.S.-based distributor.

Fortunately, you've got a "model answer" that goes both ways. The majority says that Audi AG can indeed be sued here, whereas the dissent says that, at least on this record, it can't.

So your answer is "right" either way. Depends on which professor grades your exam.

(Coincidentally enough, first-semester 1L grades just came out today at my school, so I'm definitely in an exam-pondering -- and exam-grading -- mode.)

Nissanoff v. UnitedHealthcare Ins. Co. (App. Div. - Jan. 14, 2025

I'm confident that the appellant, surgeon Jonathan Nissanoff, is an exceptionally bright person. But he's bringing an appeal on a quite complicated legal issue -- whether the Knox-Keene Act properly applies to the particular insurance company at issue in this lawsuit.

And he's doing it pro per.

I'm a reasonably intelligent person as well. But just like I wouldn't conduct surgery on myself, I'm not certain that Dr. Nissanoff should have represented himself on appeal.

The Appellate Division affirms.

In re Marriage of Goldman (Cal. Ct. App. - Jan. 10, 2025)

When I first started reading this opinion, I was disinclined to believe the Court of Appeal's result. The parties got divorced in 2009, there were letters back and forth about what stock was to be split etc., the parties discussed the matter in 2010 and their lawyers sent letters back and forth, but then basically ended their discussions and let the matter stand as it was.

Fast forward to 2018 and 2020, when the ex-wife restarts the process by filing various motions with the trial court, which dismissed them based on laches. That sounded about right to me; there was zero reason for this eight-year delay.

But the Court of Appeal reverses. As I said, I was initially dubious.

Ultimately, however, Justice Dato's opinion persuades me. Maybe there was the required prejudice, but maybe not. We'll have to learn more, precisely along the lines his opinion discusses.

I'm convinced.

Oh, and since the case arose in San Diego, I felt like looking up the parties a tiny bit. The ex-husband is a cosmetic dermatologist down here, and apparently does extraordinarily well. The ex-wife also has a very interesting story; here's her quite expansive take ("Truth vs. Lies") on her life and the underlying marriage.

Interesting stuff.

People v. Superior Court/White (Cal. Ct. App. - Jan. 13, 2025)

That's a huge, huge swing. From the original life without possibility of parole -- the sentence imposed by the trial court -- to a resentencing under newly-enacted Section 1172.6 of . . . two years.

To reiterate: from LWOP to two years.

Huge swing.

Today's another huge swing. The Court of Appeal reverses the two-year resentencing and reimposes the LWOP sentence.

Not a good day at all for Mr. White.

Mourn Away (Cal. Cts. - January 9, 2025)

There were some unpublished Court of Appeal opinions today, but nothing published by the Ninth Circuit, the Court of Appeal, or the California Supreme Court. Permitting you -- and me - to devote our full time to work, play, and/or officially mourning President Carter.

I'll say this. Whatever you thought of the guy -- and there are very strong opinions on that point -- I can't think of any former president who lived a classier post-office life, or one more worthy of respect for that period of time.

On the Ninth Circuit side, maybe also spend a tiny bit of time today to give a shout out, or at least some thought, to the three judges appointed by President Carter who are still amongst us and serving as senior judges: Judges Schroeder (age 84), Canby (age 93), and Dorothy Nelson (age 96).

Way to go.

Pollack v. Kelso (Cal. Ct. App. - Jan. 8, 2025)

I know that Justice Wiley wants to dispense with appeals relatively concisely, and maybe eight double-spaced pages (the substance is actually less than that) is indeed all one needs to resolve this particular appeal, but is this opinion really right on the merits?

Plaintiff sues for harassment (among other things), loses on summary judgment on statute of limitations grounds, and that loss -- and the resulting cost award for the employer -- gets reversed by the California Supreme Court, which then remands the case to the Court of Appeal.

Once the case is back in the Court of Appeal, it then gets remanded for trial (remember that it was initially dismissed on summary judgment), with "costs" to the plaintiff.

Then, once back in the trial court, as the case gets ready for trial, the trial court awards plaintiff a little under $500,000 in attorney's fees. Reasoning that the "costs" awarded by the Court of Appeal includes attorney's fees since it's a harassment and discrimination case.

Defendant then files an appeal of the interim fee order. Saying that the fee award was unjustified because, amongst other things, the plaintiff hasn't yet prevailed. Sure, they won their appeal. But the trial has not yet even happened. So there's no prevailing party.

Let's stop there for now. (Though, as you'll see, there's more.)

At this point, I think the defendant's right. Let's assume, for example, that the plaintiff went to trial and lost, with the jury holding that there was no harassment or discrimination. I think it's pretty clear that in such a setting, the plaintiff's not the prevailing party, and hence not entitled to fees. The fact that you win on appeal and reverse an interim order (there, and MSJ) doesn't mean you're entitled to fees.

So I'm fairly confident that the defendant is right. There shouldn't have been a fee award in the trial court in the first place.

I'm not sure that Justice Wiley (or the rest of the panel) disagrees with this.

But wrinkle here is that after the fee award, and after the fee award was appealed, one month before the trial was about to start, the parties settled their dispute (except for the fee award). And even though that settlement agreement was confidential, and is not part of the existing appellate record, for the reasons amply explained in today's opinion, I'm confident -- as is Justice Wiley -- that this agreement means that plaintiff was the prevailing party in the underlying litigation; i.e., that she got paid (moreover, that as part of the settlement agreement itself, the plaintiff was perhaps expressly declared to be the prevailing party).

Okay. So where does that leave us?

For Justice Wiley, it makes resolving the appeal fairly easy. He says that regardless of whether the fee award was proper when it was made (which, again, I think it wasn't, because it was premature at that particular point), the fee award is now proper because, at this point, the plaintiff's the prevailing party since she settled.

To use the language of the opinion: "For purposes of analysis, we assume the trial court erred by concluding before trial that Pollock was a prevailing party. Since then, however, the parties have settled and the case is concluded, save for this fee issue. We hold any assumed error was harmless."

That seems fair to me. As far as it goes, anyway. I agree, on these facts, that the plaintiff's the prevailing party. Would it be better if that settlement agreement was a part of the appellate record -- which it's not, even though plaintiff is more than willing to make it so? Yes, it would. But I understand why Justice Wiley wants to expedite this resolution and not just remand to make the settlement part of the record and then reinstitute the exact same appeal. She's the prevailing party. We effectively know that. So we can move forward.

This much I agree with.

The wrinkle's the second part. Because it relates to the first -- in my view, in a way that today's opinion may not sufficiently appreciate (or discuss).

Defendant also objects to the size of the award -- nearly half a million dollars. Justice Wiley rejects the defendant's quibbles with the award by granting deference to the trial court on these issues that would ordinarily, in a typical case, be entirely appropriate. So the Court of Appeal affirms the award in its entirety.

But that doesn't seem right to me. Again, I'm persuaded that the plaintiff is the prevailing party. But we don't know how much she's the prevailing party -- i.e., what result she obtained in the settlement -- and neither did the trial court when it issued the award. Because the trial court granted the fee award a full year before the case settled, under the (mistaken, IMO) belief that it was required to do so since the Court of Appeal had awarded plaintiff "costs" on appeal.

So, for example, the trial court ordered a 1.8 multiplier to fees. I agree with Justice Wiley that such a multiplier might well be justified -- and often is -- due to the contingent nature of plaintiff's recovery and the fact that unlike the defendant's lawyers, who are paid hourly, plaintiff's lawyers only recover if they win. That's a legitimate reason why, in some cases, a multiplier might be justified.

But whether a multiplier is justified also depends, in part, on the results achieved as a result of the litigation. Ditto for the reasonableness of the number of hours and many other factors relevant to an ultimate fee award. And the trial court didn't know those results because they hadn't yet transpired at the time of the fee award.

Let's say, for example, that under the settlement agreement, plaintiff received a mere $100 (or make it $10,000 if you'd like). That's a win. She's the prevailing party. She's entitled to some degree of fees.

But it's entirely within the court's discretion to take the extent of that win into account when it decides the reasonableness of fees, the extent of any potential multiplier, etc. If, say, she was asking for $50 million, and only received $100 (or $10,000), a court might well act within its discretion to consider the limited extent of that victory and, on that basis, decide not to award $500,000 or so in attorney's fees.

Now, could the trial court award $500,000 in fees notwithstanding such a limited victory? Sure. At least for the $10,000 win. (I'm not certain about a $100 win; it probably could, but it's be harder.)

But the point is that the trial court here did not, in fact, make such a discretionary assessment. If only because it couldn't. The case hadn't even settled yet. And it also (mistakenly) believed that a fee award was mandated regardless of ultimate victory (or defeat) at trial or settlement because the Court of Appeal had awarded costs on appeal.

So I think the Court of Appeal does, in fact, have to remand. It may well be that the trial court, after looking at the settlement, will conclude that the plaintiff was a prevailing party and is entitled to the full amount (nearly $500,000) of the fees it was previously awarded.

But it could also go the other way. If the settlement is a tiny one, the trial court could, in the exercise of its discretion, award less. That's their call. A call that it hasn't already made with full recognition of the relevant law and facts.

So it's doctrinally wrong, in my view, for the Court of Appeal to hold that "any assumed error was harmless." Maybe it was harmless. Maybe it wasn't. We can't tell until the trial court evaluates the relevant information (the settlement) that it didn't possess previously and that might, potentially, alter the exercise of its permissible discretion.

In all likelihood, I think that, as a practical matter, the trial court will probably not be affected by the size of the settlement (which I suspect was nontrivial) and will award the same amount it awarded (based on an erroneous view of the law) the first time.

But maybe not. So we gotta give the relevant decisionmaker -- the trial court -- the chance to evaluate all the relevant information and apply the applicable law.

So I would have remanded rather than affirmed. I think that's the doctrinally correct result.

People v. Collins (Cal. Supreme Ct. - Jan. 6, 2025)

There was only one published opinion from the Ninth Circuit and the California appellate courts yesterday, and it's this one. 

In all honesty, I'm not sure that you should read it. The facts are sufficiently brutal -- the killing of a two-month old baby by his father, and the second-degree murder conviction of the mother -- that it might be too disturbing of a read for some. Moreover, unlike many opinions with gruesome facts, the opinion is all about the sufficiency of the evidence, so it's 108 pages of fairly consistent ugliness.

If you can get over that, though, it's a fairly rare California Supreme Court opinion where the justices are not only split, but where all sides make super good points. As a result, figuring out which particular group of justices you personally agree with is potentially a challenge, but an important one. Whichever way you come out, I suspect you'll care about the result. 

Justice Evans authors the majority opinion and holds that the evidence was insufficient to convict the mother of second degree murder. Justice Liu writes a concurring opinion that discusses at some length why gender stereotypes about mothers could (and does) lead to a disproportionate number of them (as opposed to fathers) being prosecuted and convicted of failure to protect a child. Whereas Chief Justice Guerrero authors a dissent, arguing that the evidence against the mother was sufficient to support the conviction for second degree murder.

I'm honestly not sure which position I agree with most. This is, in my view, an exceptionally tough case. On the one hand, I have no doubt that the mother didn't want her baby murdered, and had she known for sure that the father was going to kill him, would have done something. On the other hand, there were an incredibly large number of events that a jury could reasonably find indicated a severe risk of harm to the infant: the father threatening to kill the baby even before his birth, the father's prior abuse of the child, his prior jabbing with the screwdriver at the mother's stomach while she was pregnant, the mother's efforts to protect the father after the murder, etc.

Tough. Super tough.

Grimm v. City of Portland (9th Cir. - Jan. 3, 2025)

I think that reasonable minds might well be persuaded by most of the things that Judge Thomas says in her opinion this morning. But its penultimate page -- and the final footnote -- nonetheless seem wrong to me.

Andrew Grimm parked his car on a street in Portland, used a mobile app to pay for a little over an hour of parking, but then left the car there for nearly a week. Predictably, during that week-long period, a slew of parking tickets were issued to the vehicle, all of which piled up under the vehicle's windshield wiper, until eventually the City towed the car. It cost Grimm $500+ to get the vehicle back, so Grimm sued, claiming that the City's seizure of his vehicle failed to comply with procedural due process.

The Ninth Circuit holds that putting numerous tickets on the vehicle, plus a red slip placed under the windshield wiper two days before the vehicle was towed that expressly said that the vehicle would be towed if it wasn't moved, complied with the requirements of procedural due process. You can likely understand why a court might well come to that conclusion, as the district court did when it granted the City's motion for summary judgment and as the Ninth Circuit did when it affirmed that result.

So reasonable minds might well agree on that outcome.

The rub, though, is the Supreme Court's decision in Jones v. Flowers. That case holds that even when the government has attempted to provide constitutionally adequate notice (e.g., there, by sending a certified letter), if the government nonetheless knows that its normally-effective notice did not, in fact, reach the recipient, then due process might well require additional, more extensive efforts at notice before the government may seize the individual's property.

In my view, that's Grimm's best argument. Yes, normally, putting a ticket on an automobile would count as adequate notice. But the tickets on the vehicle piled up for a full week, apparently untouched. That, he says, should have informed the City that he probably didn't receive notice of the tickets, so additional efforts at notice were required under Jones before his property was seized.

Judge Thomas responds to that argument on the next-to-last page of her opinion. She says that even though the tickets were piling up under the windshield wiper, "[v]iewing the evidence in the light most favorable to Grimm, we cannot draw a reasonable inference that the City ever became aware that its attempt to notify him of the impending tow had failed."

Respectfully, I very much disagree.

A reasonable person could easily conclude that it's extremely likely that Grimm never received actual notice that his car was about to be towed; i.e., that he never saw the tickets that were piling up on his vehicle. Indeed, I'm precisely such a reasonable person, and that's definitely my conclusion. Usually, one removes a parking ticket once one receives it. Moreover, almost always, once tickets start piling up on your vehicle, you move the thing. And definitely, almost without exception, once you see a big red sticker under your windshield wiper that says your car will be towed, you drive it away, lest it in fact be towed.

This is my experience. This is pretty much everyone's experience, in my view. Which is why a reasonable jury on these facts would almost certainly conclude that Grimm did not, in fact, receive actual notice of these tickets before his car was towed. Something that the City, which is staffed by a legion of reasonable people, would know as well.

Is is possible that Grimm saw the tickets, read them, put them back, and simply figured "Ah, heck, I'm sure this will turn out just fine for me?" Sure. It's possible. Just like it was possible that, in Jones, the recipient of the letter knew his house was about to be seized but simply neglected to respond. But the fact something is possible doesn't mean that it's likely, and here, a reasonable person would (and surely could) nonetheless conclude that it's far more likely that Grimm did not, in fact, receive actual notice of the tickets and impending tow.

I'll prove it to you. You're presumably a reasonable person, right? I've hooked up Grimm to a foolproof polygraph machine and asked him whether he ever saw the tickets on his vehicle before it was towed, and he gave an accurate answer confirmed by that machine. I'll also give you $100,000 if you correctly guess which way Grimm answered. Which way will you bet? Do you think he got actual notice or not?

(To be clear: This is a hypothetical. I have no such machine, and will never actually give you money.)

I'd predict that 99 out of 100 of you would bet, as I would, that Grimm never saw the tickets, and never knew his vehicle was going to be towed. Maybe he was out of town. Maybe he was on a bender. Maybe he just forgot. But I bet he never saw the tickets, and think that a reasonable jury could definitely agree with me on this one.

So "[v]iewing the evidence in the light most favorable to Grimm," a reasonable jury could indeed draw a reasonable inference that the City, like the rest of us, had reason to know that its attempt to notify him of the impending seizure of his property did indeed fail. Just as in Jones.

Which in turn means that you've got to reach the relevant prong in Jones, which is whether or not there were reasonable alternative means of providing additional pre-deprivation notice to Grimm, beyond the normally sufficient notice provided by the ticket, before the vehicle was towed. Notwithstanding the final footnote of Judge Thomas' opinion, which asserts that "[b]ecause the City did not have actual knowledge that its attempt to provide notice had failed, we do not reach the question whether any additional forms of notice would have been practicable under the circumstances."

I think you have to reach that issue.

Nor is Ninth Circuit precedent to the contrary. It's true that at least one prior case, Clement, said at one point that placing a ticket on a vehicle in some circumstance "can also serve as notice" that the vehicle might be towed. But while it "can" serve as such notice, in can also not serve as such notice, as when (as here) the tickets are simply piling up untouched. (You can think of additional hypotheticals as well; for example, a ticket placed on a vehicle in, say, an evacuated Chernobyl.) Moreover, the Clement case involved a vehicle towed after a single ticket was placed on the vehicle, and the Ninth Circuit held that the ticket did not provide constitutionally adequate notice of the impending tow. It's hard to argue that that prior opinion is somehow inconsistent with a holding that you gotta do more than just pile tickets on a vehicle before you tow it, no matter how easy or feasible it would be to provide additional notice as well. Especially since Clement itself suggested additional ways that it thought would be manifestly reasonable to provide additional notice in that particular case beyond merely sticking a ticket on the car's windshield; i.e., it's suggestion that "the officer might have written a ticket and left it at the front desk of the hotel, with a verbal warning that the car had to be moved or registered."

(Plus, if you really wanted to be consistent with Clement, you'd probably want to at least mention the numerous statements therein that towing someone's vehicle is quite a serious deprivation of property, as opposed to today's statements that the deprivation here was not nearly as significant as the deprivation in Jones. The latter statement is true, but the former are also true, and quite worthy of consideration and mention.) 

The long and short of this is that I think the Ninth Circuit (and the district court) did, in fact, have to consider whether alternative means of providing notice were reasonable here. A test that is not only required by Jones, but is eminently reasonable as well. Imagine, for example, that there was a button on the vehicle -- sort of like OnStar, but for towing -- that the police officer writing the ticket could push to let the owner know that his vehicle was illegally parked and would be towed if unmoved. Surely due process would require that the officer push the button before ordering a tow, right? At least when, as here (and as in Clement), the vehicle's parked in a legal space, not in traffic, not blocking a fire hydrant, etc.

Now, maybe the police officer here didn't have the phone number, or the email address, that Grimm used to initially pay for parking with the mobile app. But the City surely had the registered address for the vehicle owner, as well as the lienholder (who definitely cares if the vehicle is towed). It might have had additional ways of contacting him as well. That's something that might require a remand. But, if so, great. Remand away.

But, to me, it's just not right to say that the City had no reason to know that Grimm never saw the tickets. A reasonable jury could well conclude to the contrary; accordingly, entry of summary judgment on the present record would be inappropriate. You have to investigate the potential alternative means of notice and whether they're reasonable.

In my view, anyway.

Charlie L. v. Kangavari (Cal. Ct. App. - Jan. 2, 2025)

The 2/2 publishes this interesting opinion on 1/2, ringing in the New Year. It creates a split with the Fifth District on an issue that I suspect occurs reasonably often: Whether the pro-defendant medical malpractice provisions of Section 1799.110 apply to emergency room doctors who work outside the E.R. -- here, the radiologists who review x-ray and other medical records off site.

The Fifth District held that they did not, whereas the Court of Appeal here holds that they do.

I'm tentatively going with the Fifth District on this one, notwithstanding Justice Hoffstadt's very good arguments to the contrary.

Section 1799.110 generally makes it more difficult to sue doctors who work in the emergency room, on the theory that we need doctors in that area (so don't want to overly burden them with high malpractice premiums) and that the often frantic nature of work in the E.R. makes the "normal" malpractice rules somewhat inapplicable. That statute clearly applies to, for example, the doctor who's actually working on you in the emergency room.

But what about a consulting radiologist? Radiologists (as I understand their practice, anyway) generally are not actually in the emergency room, but are rather working at their homes or offices, and receive the x-rays or MRI images remotely, review them there, and then relay their results back to the relevant E.R. personnel. Are those doctors equally protected by Section 1799.110?

Today's opinion holds that they are. There's a textual argument for that result (of course), but the basic intent and policy arguments that support that result are that radiologists who support E.R. services, just like the doctors who are physically located there, "must make instantaneous decisions on the diagnosis and treatment of emergency patients without the benefit of time to review [the patient’s] past medical history, seek a consultation, study current medical literature, [or] reflect upon the proper diagnosis and course of treatment.”

That's true, I think. But only to a degree.

The radiologist here was asked for a "stat" consult regarding a three-year old child who was taken to the emergency room in Whittier by his mother. The child, Charlie, "had been in and out of hospitals for conditions related to a malrotated bowel he had at birth," and the question was whether he had a bowel obstruction. If he did, that's a serious issue, and requires treatment. So they took x-rays and an MRI and sent them to an offsite doctor (presumably working out of his home and/or in another time zone, since it was 3:00 a.m.), who read the images and confirmed that there was no bowel obstruction. So they sent the child home.

But the doctor was (allegedly) wrong, and "[s]oon after returning home, plaintiff vomited and turned blue. His parents brought him back to the emergency department at 8:18 a.m., nonresponsive with a faint pulse and not breathing. Plaintiff was transferred to Children’s Hospital Orange County later that morning, where he underwent multiple surgeries over the next three days to remove necrotic tissue and the majority of his small bowel due to a lack of blood flow caused by a bowel obstruction. Plaintiff now suffers “short gut syndrome,” has to be fed with a G-tube, wears diapers at all times, and struggles with speech and other mental and emotional capabilities."

Hence the lawsuit.

The doctor moves for summary judgment, and to keep things (somewhat) brief, the dispositive issue there is whether Section 1799.110 applies. As I said, the Court of Appeal holds here that it does.

I think it's right that the radiologist here was under some degree of time pressure, and didn't have the ability to consult a full medical history, "study current medical literature," and the like. But I'm not sure that this really matters, especially in a case like this. I strongly suspect that radiologists who receive and interpret remote x-ray and MRI images exceptionally rarely rely on a "full medical history" to interpret those images, much less "study current medical literature" in the midst of their interpretation. I imagine that, most of the time, they do precisely what I expect was done here: they get a basic medical history (here, that the patient had a malrotated bowel at birth), rely on their expertise, look at the pictures, and report what, if anything, they see. 

And, critically, they do that exact same thing for both emergency room and non-emergency room images. They're trying to see if a bowel is obstructed, a bone in broken, a heart is swollen, etc. If it is, then that's important, and potentially life-critical. If not, great. It's the same basic task, and the doctor accomplishes it in the same fundamental fashion.

Are there some additional time pressures potentially associated with a "stat" radiology consult? Yes, I suspect. In a way. It definitely means that the doctor can't dilly dally. We need to know the answer fairly rapidly. So it's not like a "regular" x-ray where maybe the doctor can take a day or two to get around to it. Hence the 3:00 a.m. consult here, and why radiologists (like this one) are assigned to be "on call" at all hours of the day and evening.

But that doesn't necessarily mean that an immediate -- or even shortened -- review is required. Here, for example, the child's "X-ray was taken at 3:12 a.m. and Kangavari issued a report based on the images at 3:51 a.m." and the child's "ultrasound was taken at 3:24 a.m. and Kangavari issued another report based on those images at 4:35 a.m." So it took a half-hour to examine and report on the x-ray and over an hour to examine and report on the MRI. I strongly doubt that examining non-ER images takes any different time period; in other words, that the doctor did indeed examine these images as soon as possible ("stat"), but that they nonetheless simply went through the normal review process -- the exact same process applied to non-ER images.

So was there "time pressure" for the doctor's review? Sort of. But not the type of "time pressure" that led to the special provisions of Section 1799.110. What the Legislature was worried about there was that doctors who have to treat patients extremely expeditiously -- e.g., in "meatball surgery" (for those old enough to remember M*A*S*H) -- shouldn't be subjected to the same sort of "second guessing" than "normal" doctors. Hence the special rules. 

But here, there's no shorthand. No different process at all -- or at least none that I can see.

Instead, to take an analogy from my own academic practice, there was indeed "time pressure" -- the same kind of "time pressure" that applies when the Dean instructs you to grade a set of final exams for a graduating senior -- but that doesn't at all mean a different level of review. Do you put those set of 3L exams on the top of the pile? Yes. Just like the radiologist here puts "stat" images at the top of her pile. But the substantive review is the same. There's no shorthand. It's just that one set of documents is more time-urgent than the other. You give them the same review, the same basic time, and the same basic result. If so, it seems unnecessary to give "special protection" to one type of image review over the other. Just like we give the same basic protection to law school grades given to graduating 3Ls and non-graduating 2Ls. One set of exams is more "urgent" than the other, but the same basic rules apply.

Ditto for "stat" car repairs, childhood chores, or the like. Yes, we ask them to fix that car, or take out that trash can, immediately, because we need that car (or the trash truck is coming) tomorrow, so it can't take the weekend. But the substantive standard is the same. So too here, I think.

So if I had to choose, my tentative thought it to go with the earlier Fifth District's opinion on this one. At least in this context. 

I might at least hypothetically imagine different contexts in which I might go the other way. If, for example, there was a patient having an apparent heart attack, and there was a remote consult where the radiologist only had, say, 30 seconds to make a determination of whether it was a blockage as opposed to an aneurysm, okay, maybe that's the kind of time pressure that supports a different standard. We can't expect "normal" procedures and standards to apply in that particular context. Just like, in our world, we would not expect the ordinary standards of lawyerly skill to apply to emergency appellate briefs that we are ordered to prepare and file within 24 hours as opposed to those we have the freedom to prepare over several months.

But in the present case, I'm just not sure that Section 1799.110 rightfully applies.

People v. Garcia (Cal. Ct. App. - Dec. 31, 2024)

This year ended in the Court of Appeal with a bang. I read this opinion -- the penultimate one published in 2024 -- with particular interest for multiple reasons.

First, the facts. As it turns out, if you see a ghost gun advertised for sale on Snapchat for $750 and then meet up with the seller in a parking lot to buy it, sometimes, rather than sell you the ghost gun, they will simply rob you instead -- and then murder you if you resist. Seems like that's an important lesson.

Second, the result. The defendant here gets sentenced to LWOP -- no small penalty -- but the Court of Appeal reverses, holding that the trial court erroneously admitted various gang-related evidence. Given the evidence against him, I have a strong sense that the defendant will be convicted yet again at the ultimate retrial, but for now, that's a big win.

Third, the location. The murder here happened in the parking lot of the Vons on Midway Drive in San Diego -- the same one I shop at, and that's three miles from my home. Now, for the most part, I merely purchase groceries at the Vons, rather than firearms in the parking lot. But good to know that I might want to steer clear of alternative acquisitions at that particular location.

Fourth, the victim. The opinion mentions that the murder victim was "Eduardo S." -- and refers to him by his first name, to protect his anonymity, 60 different times. But the California Supreme Court and the California Style Manual declare that "Anonymity, however, is inappropriate for homicide victims, who are to be identified whenever possible." So I think the Court of Appeal should memorialize him in its published opinion, and I'll do so here. His name was Eduardo Salguero. Rest in peace.

Finally, the lawyer. I noticed on the caption that the court-appointed attorney for the defendant was Marcia Clark. Yes, that Marcia Clark. Still plugging away on criminal cases even at age 71. Good for her. I'm glad the stuff stays interesting, even after all these years.

That's it for the year. May your 2025 be even better than 2024.

U.S. v. In (9th Cir. - Dec. 30, 2024)

Watch out for those police officers on bicycles near the Las Vegas Strip. Especially if you happen to have a gun in your vehicle. Because even if they take you out of the vehicle, you "might" be able to run back to it and get the weapon before they can tackle you; accordingly, the police can handcuff you even without probable cause.

So holds the Ninth Circuit.

Admittedly, here, the defendant had also (obviously) lied about whether there was a weapon in the car. The Glock was in plain sight on the backseat passenger-side floor of the vehicle, and yet when the police asked him if there were weapons, he (unwisely) said "No." That lie undoubtedly led, in part, to the police officer's decision to handcuff him.

As an aside, I found particularly humorous the officers' dialogue here. After the defendant denied having any weapons in the vehicle, here's the relevant exchange:

"Officer Andersen asked “Why is there a Glock back there? You don’t know now?” In [the defendant] said he had left the shooting range, and Officer Diaz responded, “Did you? In some sandals? Do we look new to you?”"

I think the line "Do we look new to you" is destined to become a classic.

(It'd have been even more humorous if the defendant had responded "Well, you are assigned to patrol on a bicycle, so I don't think you're anything like a wily veteran." But I get that a response like that would likely only get the handcuffs tightened even further.)

People v. Gudiel (Cal. Ct. App. - Dec. 26, 2024)

The year is rapidly coming to a close, so if anyone wants to get into the "Best of 2024" categories, now's the time.

Today, Justice Stratton takes her shot; in particular, at the "understatement of the year" category. 

She says, in the second paragraph of her gang-related second degree murder opinion:

"The West Side Locos and Toonerville gangs do not get along."

Yeah. You could definitely say that.

People v. Perrot (Cal. Ct. App. - Dec. 23, 2024)

You might think that work at the Court of Appeal stops entirely during the holidays. Not so. It slows down, for sure. But opinions continue to be written and published. At least for a while.

Today's opinion addresses a variety of issues, but the particular one that caught my attention was this:

Does a prior sex offender have a right to possess . . . a penis pump and/or dildo?

Is that the most onerous parole condition in the universe? No. The other restrictions -- for example, on access to the Internet, etc. -- are far more substantial.

But the guy did get busted for having the pump and dildo, and ended up getting thrown in the pokey for 60 additional days as a result.

His defense was that he needed the pump to get an erection, and that the dildo was his girlfriend's -- the latter defense confirmed by the girlfriend herself, though apparently rejected by the trial court.

Do I want a child molester to get erections? I guess not. Though, at the same time, if he's got a girlfriend, isn't molesting children, and needs the thing (which, after 20 years in prison, he perhaps might), I'm not certain that I care all that much.

Do I care that he has a dildo? Again, as long as he's not using it on children -- and it doesn't seem like he ever did that before -- I'm not sure that I do. And, at least facially, it sounds fairly persuasive to me that it isn't his, but rather his girlfriend's. That it was -- as the Court of Appeal argues -- "not locked away or kept in a location in his residence beyond Perrot’s ability to access" doesn't seem all that persuasive to me. It's not a gun or drugs or anything like that. It's a dildo. If the girlfriends wants (or needs) one, I'm not sure I'm really going to insist that it be locked up, lest Mr. Perrot attempt to misuse it.

I don't know. The whole pump-and-dildo thing seems silly to me. Could you bust the guy for having the internet devices he's not supposed to have. (Oh no! A PlayStation!) Sure. I definitely do not want the guy communicating with minors.

But the marital aids? I'm just not sure that I really care -- or care enough to throw a guy back in prison for the stuff. (Even for 60 days.)

Though I understand that reasonable minds might perhaps differ on this.

Back to the main point, though:

The Court of Appeal rests not during the holidays. There's pump and dildo work remaining to be accomplished.

JJD-HOV Elk Grove LLC v. Jo-Ann Stores (Cal. Supreme Ct. - Dec. 19, 2024)

I'm no fan of liquidated damages provisions. They're often (indeed, typically) employed in an oppressive fashion, and included by the economically superior party in a contract with a much more vulnerable counterparty.

But when a sophisticated shopping mall negotiates with a sophisticated business and they mutually agree on a cotenancy provision -- basically, that rent gets reduced if and when an "anchor" tenant leaves and the foot traffic to the mall thereby diminishes -- I have zero problem with them. And very much appreciate Justice Evan's unanimous opinion holding that the cotenancy provision here was just fine.

To me, the case for intervening in the contractual relations is at its nadir when the matter involves very sophisticated business parties, little to no public policy concerns, and provisions that are beneficial to both sides at different points in time. The cotenancy provision here is a perfect example. The shopping mall was able to receive higher rent when it had anchor tenants with a lot of foot traffic, and the store was able to pay lower rent when the anchor tenants were gone and the foot traffic diminished.

The fact that the departure of the anchor tenants was not under the "control" of the shopping mall is of no moment. For one thing, the shopping mall could have gotten someone in there by offering incentives; I bet a lot of stores would take the space if the mall owner charged, say, a penny a foot in monthly rent. 

And even if the anchor tenant's departure was entirely beyond the control of the shopping mall owner, so what? Lots of contracts provide for higher (or lower) rent when things beyond the control of the parties occur. I'm not in charge of the U.S. money supply, for example, but if my contractual rent increases (or decreases) based on the nationwide inflation rate, tough. Ditto for a contract that establishes a set price when the cost of the underlying commodities rises or falls. Those provisions harm the party adversely affected by the things the occur beyond their control. But we're fine with that.

So I'm a thousand percent on board for today's opinion. Indeed, I affirmatively like these provisions. They make sense for everyone.

So yay, California Supreme Court.

Merrick v. Lau (Cal. Ct. App. - Dec. 17, 2024)

“I already rejected those arguments. Okay. I know your client was not happy with my ruling. I mean, she was there, you know, mad dogging me, which didn’t bother me at all. It was almost amusing to see this little Chinese woman stare me down, because she didn’t like the ruling. But again, it’s just business. I didn’t take it personally.”

We can all agree, I think, that the judge's reference to the litigant's ethnicity and gender was unfortunate, unnecessary, and should be avoided. I suspect that even the trial judge, at this point, is of that view.

The Court of Appeal affirms the decision below, which I think is the correct result on the merits.

I also think it made sense to (belatedly) publish the opinion.

Keep those thoughts to yourself. Or, better yet, don't have them in the first place.

Majestic Asset Mgmt. v. The Colony at California Oaks (Cal. Ct. App. - Dec. 16, 2024)

Ah, the hassle of living in a golf course community.

I really appreciate what the Court of Appeal (as well as the trial court) did here. Buyers purchase a golf course in Murietta (the California Oaks Golf Course) subject to an agreement with the homeowner's association of the various homes that surround the golf course to keep the place in good shape. Buyers, however, fail to do so; the grass gets brown, trees die, a lake dries up, etc. So the HOA sues Buyers.

The HOA wins, and the trial court enters an injunction that compels Buyers to bring the course back up to snuff. They fail to do so. So the HOA moves to foreclose.

The HOA wants a "credit bid" so it can buy the property. But Buyers say they aren't entitled to one, or that, if they are, it should only be for $3000. The trial court disagrees, and grants the HOA a credit bid of $2,000,000+. Alongside an order that if the HOA (or anyone else) buys the property, they're still subject to the requirement to keep the course in good shape. Whereas Buyers say that if, instead, they purchase the property at foreclosure, the requirement that the course be properly maintained should be gone.

The Court of Appeal almost entirely agrees with the HOA, and rightfully so. The Court of Appeal reduces the HOA's credit amount by $244,000 to $2.5 million (again, correctly), but otherwise agrees with the HOA and grants them costs and fees on appeal.

All of which will, hopefully, lead to a result that's the best possible under the circumstances: the HOA will buy the course with its credit bid, get a real management company to run the place, and the area will be at least as green and pretty as it can be for a desert community in which I can personally attest it gets SUPER hot (sometimes over 100 degrees) in the summer.

Happiness to the maximum extent possible. (Except for the Buyers, of course.)

People v. Caratachea (Cal. Ct. App. - Dec. 13, 2024)

Defendant is convicted of molesting four children. So you know he's going to be sentenced for a long time, even if he has no prior criminal record.

He receives a sentence of 785 years to life (plus an additional six years). That's because the trial court imposed the sentences consecutively, agreeing with the prosecutor that the law granted no discretion for concurrent sentences in these types of cases.

The Court of Appeal reverses. There is, in fact, discretion. So maybe some, or all, of those 25-to-life sentences can be served concurrently. Remand.

Though I'll mention one thing in this regard that's nowhere in the opinion, but which you can nonetheless find out when you look up the defendant on the California Inmate Locator website.

He's 72 years old.

Which means that there's no way that any of this actually matters. He's going to die in prison regardless, or (if he's lucky) get compassionate release shortly before he dies.

But, hey, at least we eventually got the law right.

Kaur v. Dual Arch Int'l (Cal. Ct. App. - Dec. 11, 2024)

I know it's a pain in the butt to have to sit through a trial and listen to the evidence when you strongly think that one side deserves to prevail. But it generally seems a mistake to me -- doctrinally, we call the move "disfavored" -- to grant a nonsuit after the plaintiff's opening statement on the grounds that the evidence she's described therein is insufficient to support a judgment in her favor. As a general rule, why not actually listen to the evidence instead and then decide whether or not to grant a nonsuit then?

Otherwise, you risk substantial wasted time and effort when the Court of Appeal reverses the dismissal and finds the opening statement sufficient (assuming, of course, that the actual evidence ultimately shown at trial accurately corresponds to counsel's description during her opening argument).

Like, for example, the reversal here.

People v. Billy (Cal. Ct. App. - Dec. 9, 2024)

"Defendant and appellant Anthony Jordan Billy was convicted of driving under the influence of alcohol (DUI) with three or more DUI offenses in the prior 10 years (Veh. Code, §§ 23152, subd. (b) & 23550, subd. (a)). 1 Under section 23552, subdivision (a), if a person convicted under section 23550 receives probation, “the court shall impose as [a] condition[] of probation that the person be confined in a county jail for at least 180 days.”"

Anthony. Tony. J-Rod. Billy. Whatever you prefer to be called. Please, please, please get it together.

Mr. Billy spent 180 days in a residential alcohol treatment facility, so that's good. But the Court of Appeal holds that he still has to spend 180 days in jail as well, because that's the mandatory minimum sentence under Section 23552(a). It doesn't matter that other provisions say that residential treatment counts. The specific subsection here controls.

Mr. Billy hasn't served his time in jail yet; the sentence has been stayed while his appeal was pending. Unfortunately for him, the time has now come to pay the piper.

People v. Hall (Cal. Ct. App. - Dec. 5, 2024)

Am I wrong, or did something here get mixed up in the opinion editing process?

The Court of Appeal affirms the defendant's convictions, and that result seems right to me. In a child abuse prosecution, you can't help make your children unavailable for trial -- which it seems clear to me (alongside the trial court and the Court of Appeal) that the defendant did -- and then claim a hearsay or Confrontation Clause violation. That's your fault. Forfeiture.

But while the result seems correct, here's how the last paragraph of the first page of the opinion reads:

"Hall concludes that without the children’s statements his convictions on the two child abuse counts lacked evidentiary support. On this point the People do not disagree and instead contend that both the trial court’s evidentiary rulings were correct."

Shouldn't that read "do not agree" (rather than "disagree"), or shouldn't "do not" be deleted (so it reads "the People disagree")?

I wish that I could say I always reviewed my work product one last time -- and did so perfectly -- to make sure I caught all the minor typos. I most definitely cannot so claim. (Not truthfully, anyway.)

POSTSCRIPT - A well-informed reader says that the Court of Appeal probably meant what it said, and I'm persuaded. The People agree that they need the kids' statements, but disagree that the statements were inadmissible. Okay. Got it. Though definitely missed it the first time!

Chinaryan v. City of Los Angeles (9th Cir. - Dec. 4, 2024)

Were I the one responsible for writing the unofficial syllabus for this opinion, this is how it'd have gone (in its entirety):

"Ninth Circuit: 'Summary judgment reversed. Feel free to go to trial.' Mandate issues.

Party Stipulation (to District Court): 'Please stay the case while the loser petitions for certiorari.'

District Court: 'No can do. The mandate issued. No power. Ask the Ninth Circuit if you want one.'

Party Stipulation (to the Ninth Circuit): 'Please stay the case?'

Ninth Circuit: 'Nope. Denied. Ask the district court.'"

Admittedly, the Ninth Circuit also (helpfully) tells the district court: "You do have the power to stay, so stop saying you don't. Your call, not mine."

Otherwise this ping-pong could have gone on forever.

Planned Parenthood v. Labrador (9th Cir. - Dec. 4, 2024)

The Ninth Circuit today affirmed a preliminary injunction against Idaho's efforts to stop doctors from referring patients to out-of-state providers. Losing on the merits was definitely not what the Idaho Attorney General (alongside the Idaho Solicitor General) wanted.

But the last part of Judge Fletcher's opinion adds insult to injury, saying (in rejecting Idaho's efforts to have a different judge assigned on remand):

"No 'reasonable outside observer' could conclude that the district judge harbors personal bias against the defendants or that reassignment is warranted to preserve the appearance of justice. See id. at 1046. The Attorney General charges that the district judge ignored relevant materials, mischaracterized the record, and unfairly denied supplemental briefing. This charge is patently false. The thorough preliminary injunction order shows that the district judge carefully considered the record, the Attorney General’s arguments, and the parties’ timely filings. The compressed briefing schedule reflects the emergency nature of the relief plaintiffs requested. The decisions to deny supplemental briefing and reject untimely filings were well within the district judge’s broad discretion to manage his docket."

"Patently false" are fairly strong words to describe an advocate's representations to a court. Definitely not something I'd want said about me. 

Today's Insurance Opinions (Cal. Ct. App. - Dec. 3, 2024)

Both of these opinions -- coincidentally published on the same day -- amply demonstrate why some people rationally elect not to purchase insurance coverage. Because what you may well think that you're buying doesn't actually protect you from the losses you fear.

The first opinion involves fire coverage for a home in Malibu. Ms. Hughes bought a homeowner's policy from Farmers. You'd think that'd cover you if your house burned down, right? Nope. Her house burned down, but there's an exclusion in the policy (that her broker allegedly absolutely didn't mention) that says that the policy doesn't cover fire if you could buy a state-sponsored FAIR policy. So lawsuit dismissed.

The second opinion involves a  commercial general liability policy issued by Continental Casualty to a massage parlor owner. What's the absolute biggest risk you face when you own one of those businesses? Right. You're worried that you might get sued if you or one of your employees allegedly touches someone without their consent. Which, of course, happens here. At which point the insurer refuses to defend the lawsuit, relying on an exclusion in the policy, and a stipulated $6.8 million judgment results. The owner sues the insurance company for coverage. Lawsuit dismissed.

Both of these judgments get affirmed. Which is hardly surprising. The relevant exclusions do indeed negate coverage for the exact thing the owners probably bought the insurance for in the first place.

Which you'd think, at some point, would diminish the number of people willing to buy insurance.

Though that assumes you read the fine print of these massively long policies. Which few people do.

Which in turn is, of course, why those exclusions persist.

Schneider v. Hull (Cal. Ct. App. - Dec. 2, 2024)

It's boring, I know, but sometimes I just want to call out an opinion as being really smart and comprehensive. Like this one today by Justice Hull.

It's not the most critical opinion in the world, other than to the parties. There are two adjoining parcels by a river, and the only way to get to one of them is through an easement over the other. To minimize the intrusion on the dominant tenement (*fancy word*), the easement on behalf of the servient tenement (*ditto*) runs along the river.

But that has problems of its own. In 2002, flooding destroyed the riverbank and hence the easement, leading to litigation that was resolved in 2011, in which the trial court moved the easement a little bit inward from the riverbank. The goal, again, was to minimize the impact on the dominant tenement.

But floods will be floods. Then, in 2018, there was another flood, which made the new easement too difficult to traverse. Leading to new litigation, and a plethora of arguments about claim preclusion, issue preclusion, the nature of easements, etc. Imagine a really difficult property class combined with a really hard class on civil procedure. That's today's opinion.

Nonetheless, Justice Hull does a great job. His opinion seems sensible and entirely just -- as well as doctrinally correct. There's a new easement, this time (again) a little bit further inland. And unlike the trial court, the Court of Appeal doesn't make the owner of the servient tenement pay the million bucks or so it'd take to stabilize the riverbank so we don't see round three.

Hopefully this latest easement won't be washed away too. But if it does, well, that's life. Back to square one. Again.

For now, though: Justice.

People v. Multani (Cal. Ct. App. - Nov. 26, 2024)

Mr. Multani has been sentenced to life in prison. But he also has stage IV lung cancer. It's going to kill him, so he would like compassionate release from prison.

The wrinkle is that Mr. Multani has had stage IV lung cancer . . . for 10 years now. It's a specific type of lung cancer with a particular gene profile, so we have treatments for that. Those treatments are not a cure by any means, but they've enabled Mr. Multani to live this long. Eventually they'll fail, of course. But no one knows when.

Do you get compassionate release?

The Court of Appeal and the trial court say: No.

Yes, the cancer metastasized to his brain in 2017. But since then, it's been "perfectly suppressed." He still has symptoms, of course. He has weakness and problems with balance and cognition that require him to use a wheelchair. And, again, at some point, the cancer almost certainly will kill him. Maybe in a month. Maybe in six months. But maybe not for years. Depends on when the gene-targeting drugs stop working.

The Director of Health Care Services for the CDCR recommended that Mr. Multani be granted compassionate relief, but the trial court disagreed. It held that Mr. Multani was not on an “end-of-life trajectory” under Section 1172.2 in light of his prior and expected future treatment. The Court of Appeal affirms.

Tough call either way, IMO.

Murphy v. City of Petaluma (Cal. Ct. App. Nov. 25, 2024)

Here's another one where both the trial court and the Court of Appeal seem to me to have the right take; this time, in dismissing a lawsuit on summary judgment:

"Marites Murphy sued the City of Petaluma and fire department paramedics Jude Prokop and Shay Burke for medical negligence after the two paramedics responded to the scene of a head-on automobile collision in which Murphy was involved. As we shall discuss, the distinctive feature of this case is that Murphy repeatedly told the paramedics she was not injured and did not want or need medical assistance, and she said so even after being warned she might have suffered a serious injury that was not yet symptomatic and being urged to accept transport to a hospital for examination by a physician. Accordingly, after concluding Murphy had the capacity to refuse medical treatment, the paramedics left the scene. Unfortunately, hours later, Murphy suffered a serious debilitating stroke attributable to a hypertensive crisis triggered by the collision. She subsequently filed this lawsuit alleging the paramedics owed her a duty of care, which they breached through gross negligence, to assess her medical condition and to arrange transport to a hospital. The trial court granted the defendants’ motion for summary judgment, ruling the paramedics did not assume a duty of care to provide Murphy with the medical assistance she claims was owed. We affirm." 

I feel incredibly bad for Ms. Murphy, of course. But I agree with the Court of Appeal and the trial court that the paramedics did all that they were legally required to do. Ms. Murphy was competent at the time. She could -- and did -- refuse medical treatment. She had that right. If that's your choice, not only do the paramedics have no "duty" to conduct further medical tests, they also affirmatively have no right or legal ability to do so. When someone competent says "I'm fine, leave me alone," that's the end of the matter.  Leave 'em alone.

I was reminded when reading this case of my own personal experience on this front. I was riding my bike home from work several years ago when I was hit by a car. Many ribs were broken, I could tell my left lung was punctured, I had trouble breathing, etc. It was a serious. But I was wearing a helmet and knew that I hadn't hit my head. The paramedics show showed up -- quite rapidly, I might add; thank you for that, as well as the resulting morphine -- and understandably wanted to place me in a cervical collar, but when they did so, I had a much harder time breathing. So I told them to take it off; that I was certain that I had not hit my head and that my neck was fine. They repeatedly said: "Are you sure?" and I responded that I was, so they never put me in the thing.

That's exactly how that event should have gone down, and everything was fine. Were the law other than as articulated in this opinion, people might well be subjected to medical interventions that they do not want. We don't do that. (Not generally, anyway.) The downside of that legal regime is that, sometimes, perhaps a as here, people get injured in a way they didn't anticipate. That's a real harm, to be sure. But we are about autonomy. Deeply. Sometimes you get to choose to do things that are unwise, or even that affirmatively may cause you harm.

As here.

The upsides are worth the downsides. I'm glad the Court of Appeal agrees.

Juarez v. San Bernardino School Dist. (Cal. Ct. App. - Nov. 25, 2024)

It's been a busy week or so, and as a result, I've gotten a little behind on reading cases. But today sees a good one that's definitely worth note.

The trial court thought these facts weren't sufficient to create a claim for conduct "under color of law" for which the defendant could be liable, and hence granted a demurrer. The Court of Appeal disagreed and reversed.

Seems to me that the Court of Appeal is unquestionably correct.

The relevant facts, as alleged in the complaint:

"In February 2018, Juarez found a cell phone on the ground in Cherry Valley, California, located in Riverside County. Juarez placed it in his truck. Later that afternoon, when Juarez and the other plaintiffs were outside of Hinojosa’s home in nearby Beaumont, California, Officer Brown approached them after tracking his cell phone to their location.

Officer Brown, who was employed by the District as a police officer at the time, was carrying his firearm and had his District police badge clipped to his belt. He immediately identified himself as a police officer for the District, displayed his badge to plaintiffs, and demanded that they comply with his commands. Officer Brown then pulled his firearm, cocked it, and aimed it at Juarez, Espinosa, and Hinojosa, while Morfin, Hinojosa’s wife, watched from inside the house. Officer Brown demanded they turn over the cell phone and repeatedly asserted his authority as a police officer for the District. Juarez retrieved the phone from his truck and attempted to hand it to Officer Brown, but Officer Brown ordered Juarez to put the phone on the ground. As Juarez went to do so, Officer Brown struck Juarez in the face with his gun, causing Juarez to fall back, hit his head on the ground, and lose consciousness. Officer Brown then took pictures of plaintiffs and told them he knew who they were.

Officer Brown later pled guilty in San Bernardino County Superior Court to assault by a public officer (Pen. Code, § 149) and threatening the other plaintiffs under color of law, admitting that he acted under the color of authority as a District police officer when he detained plaintiffs and assaulted Juarez."

Those seem clearly -- clearly -- sufficient to me. 

LCPFV, Inc. v. Somatdary Inc. (Cal. Ct. App. - Nov. 11, 2024)

On occasion, I'll read an opinion by Justice Wiley that I feel is too harsh or curt (or both).

Not here.

A plumber allegedly didn't do a great job on work that cost $47,883.40, so the owner of the building had to hire someone else to fix it. The worker who subsequently fixed the problem charged the owner less than $43,883.40, but the owner nonetheless sued the original plumber for a fair piece of change. When the first plumber eventually defaulted, the owner submitted a default package asking for over $1 million, including over $300,000 in attorney's fees. The trial court said "No way" and awarded $120,319.22 total, and the owner appealed.

The Court of Appeal affirms. And isn't shy about explaining why.

Read the whole opinion -- it's 25 pages -- for a full understanding of why the trial court (as well as the Court of Appeal) thought that the owner was unnecessarily churning the case. Plus there's the whole "lack of candor" portion of the opinion. I'm fully on board for everything that Justice Wiley says on this score.

I nonetheless will mention that a small portion of the opinion seems erroneous to me.

The plaintiff here propounded a number of case-dispositive requests for admission, which the defendant didn't respond to (because no one represented him at that point). That's a time-worn strategy, and hardly unique to this particular case.

Justice Wiley takes umbrage at this practice, saying that it was unnecessary since the defendant had already essentially defaulted. I fully agree with that.

But he also attacks the practice writ large. He quotes the Rutter Group to say that "requests for admissions are useful 'only as to matters of lesser importance (for which they may not be necessary, since unimportant matters can usually be handled by stipulation with opposing counsel).'" And then goes on to say that, as a general matter, propounding RFAs on the ultimate issues in the case is "troubling," "not ‘in conformity with the spirit of the law,’" and does not "serve substantial justice.’”

I understand that there are occasional cases that so state, but that attitude seems flatly wrong to me. It's just fine, in my view, to propound case-dispositive RFAs, even at the very outset of the case. Mind you, if you do so, the RFAS may well not be successful, since the other side will almost surely deny them and the trial court will almost equally surely find "substantial justification" for such denials given the early stage of the litigation and hence deny cost of proof sanctions even if you establish the truth of the requests at trial. But if you want to give it a shot, I see nothing improper about the practice.

Moreover, I think the practice has affirmatively beneficial results as well. Sometimes, even early on in the litigation (and especially thereafter), there is in fact no substantial justification whatsoever to deny even case-dispositive RFAs. Say, for example, you rear-end someone on a bridge. Or drive drunk and smash into someone's house. That's pretty much certainly your fault. If you nonetheless deny liability in your answer, well, a case-dispositive RFA on an ultimate fact can -- and should -- be coming your way. And if you have the gonadular fortitude to deny the thing, well, if I'm the judge, I'm imposing cost of proof sanctions every day of the week if liability is ultimately found. Rightly so.

RFAs are designed to narrow disputes, and one (critical) way they do so is to impose a burden on those litigants who might wrongfully create disputes where none actually exist. That's equally true for both "important" (e.g., case dispositive) portions of the case, as well as less portions. RFAs are valuable in both settings.

So I'm 100% on board for Justice Wiley's language as applied here. But I don't think that language applies more broadly, and am worried that a published opinion contains language that litigants might well use to defeat the value (and use) of case-dispositive RFAs.

The Comedy Store v. Moss Adams LP (Cal. Ct. App. - Nov. 14, 2024)

You've got to pull quite a few doctrinal moves to make this opinion work. But Justice Mori pulls them all. The Court of Appeal holds that since the defendant's forum selection clause (which required all lawsuits to be filed in Washington state) also contained a waiver of the right to a jury trial, which is enforceable in Washington but not in California, it's not entitled to a dismissal of the California state court lawsuit on forum non conveniens grounds.

Even if the defendant stipulates to waive the impermissible (in California) jury trial waiver provision.

I thought that the equity of this result was best expressed in one particular paragraph near the very end of Justice Mori's opinion, in which she says -- quite correctly, in my view:

"Predispute jury waivers have been unenforceable in California for nearly 20 years. (See Grafton, supra, 36 Cal.4th at p. 956.) According to a declaration from Moss Adams’s general counsel, engagement agreements similar to the one signed by the Store have been in use throughout this time. If we were to hold that Moss Adams’s unilateral stipulation satisfied its burden of proof under Verdugo, it would have little incentive to take the jury waiver out of the agreements it provides to California clients. It can simply wait and see if a client who signs the agreement sues it in California and argues the forum selection clause impinges on the client’s right to a jury trial. Then Moss Adams can provide a non-enforcement stipulation. However, if the client does not recognize its right to a jury is unwaivable, it may end up abiding by the terms of the agreement and litigating the case in Washington without a jury."

Yep. Spot on right.