City of Gridley v. Superior Court (Cal. Ct. App. - Sept. 11, 2024)

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.

McCurry v. Singh (Cal. Ct. App. - Sept. 10, 2024)

I'm in the legal field, not the medical sphere, so I don't really know how much it matters which hospital you are taken to (presumably in an ambulance) after a medical emergency; say, a heart attack. I assume that emergency rooms and trauma centers are fairly competent, at least in a big city (say, Sacramento). So it wouldn't seem to me like it would matter too much. At the same time, I understand that some hospitals may well be a little better than others, so if I had my druthers, I'd presumably rather go to them.

That said, after reading this opinion, I have -- accurately or not -- a keen sense that I'd rather not go to Methodist Hospital in Sacramento if I'm ever in the area and in the midst of a cardiac emergency. Here's a brief recitation of facts -- which are even labelled "undisputed facts," I might add, so they're presumably at least somewhat accurate -- from the opinion:

"On March 9, 2019, at 7:28 a.m., decedent was brought by ambulance to the emergency department at Methodist Hospital. She had a history of chronic obstructive pulmonary disease, and she presented with shortness of breath. A chest x-ray and a CT scan, however, indicated decedent had an aortic dissection. She quickly decompressed and was intubated.

Dr. Michael Brandon, the treating emergency physician, worked to have decedent transferred out as quickly as possible. Two cardiovascular surgeons he consulted with believed the dissection was not the most pressing issue, so Dr. Brandon focused on the fact that, given changes in decedent’s electrocardiogram (EKG) and other symptoms, decedent was most likely having a heart attack (myocardial infarction). He believed decedent needed a cardiac catheterization, a procedure that Methodist Hospital did not have the capability to perform.

Dr. Brandon spoke with defendant, Dr. Singh, an on-call interventional cardiologist at Mercy General Hospital. Dr. Singh initially agreed that decedent needed acute catheterization, but upon learning of decedent’s elevated creatinine and other conditions, he concluded decedent would not be a candidate for the procedure. He offered to consult on decedent’s case if she were transferred to Mercy General. But before decedent could be transferred and Dr. Singh could consult on the case, an intensivist (an ICU doctor) had to accept decedent’s transfer. Dr. Singh never agreed to decedent’s transfer.

Dr. Brandon spoke with Dr. Jamal Sadik, a Mercy General intensivist. Dr. Sadik initially agreed to accept decedent’s transfer provided interventional cardiology was involved. But he changed his mind after learning that Dr. Singh did not plan on performing a catheterization on decedent. Dr. Sadik could not accept the transfer if, as a result of Dr. Singh’s decision, decedent would not receive any interventions at Mercy General that Methodist Hospital could not provide.

Dr. Brandon submitted transfer requests to Sutter, UC Davis, and Kaiser, but each facility declined to accept the transfer. Dr. Brandon then consulted with Methodist Hospital’s chief medical officer and, ultimately, with Mercy General’s chief medical officer. At around 6:15 p.m. that evening, Dr. Brandon learned that Dr. Sadik had agreed to the transfer and to admit decedent to Mercy General. Unfortunately, decedent died while awaiting transfer."

So if I read all this correctly, the patient here arrived at Methodist Hospital during the early morning hours (7:28 a.m.) during a cardiac emergency and, in response, the medical staff there futzed around and tried to get her transferred to a hospital in which she could actually be appropriately treated for approximately the entire day, ending only when, that evening (sometime around 6:15 p.m.), she died awaiting care.

Not exactly a great look for Methodist Hospital, and one that might well get me to tell the driver of any ambulance that picked me up: "Yeah, maybe take me someplace else first, please."

P.S. - The opinion was originally unpublished. It gets published today.

Sunflower Alliance v. California Department of Conservation (Cal. Ct. App. - Sept. 6, 2024)

When you pump oil out from the ground (at least out here in California), you get a lot of water alongside the oil. You then have to do something with the water -- which is oily water, so neither drinkable nor of any real use. So oil companies generally just pump it back into the ground, though federal law says you can only pump it back in if the aquifer you're pumping it back into isn't drinkable anyway. (Which, I suspect, is generally the case, since the underground aquifer is probably pretty oily anyway, since you're getting oil from there. But maybe there are circumstances in which the water at one level is fine but at another level -- the level you're pumping the oil from -- it's not.)

The Reabold oil company pumps a lot of oil out of the Brentwood Oil Field, and has done so for over 60 years. Lots of oil, lots of water. There's one particular oil well out there that they're not using any more, since it's over an area where they've already pumped out all the oil that's economically feasible to remove.  So they plugged that well, but now they want to fix the thing to inject into the ground all the dirty water that comes out of all the other surrounding (still productive) oil wells. That'll stop them from having to truck the dirty water to the existing place where they dump all that dirty water back into the ground.

The question at issue is whether Reabold needs to get a CEQA permit to do so. The statute says that you don't have to get a permit for something that involves only a "negligible or no expansion" of the use of an existing facility; here, the oil well.

The trial court says that this exemption doesn't apply, since Reabold is turning an existing well that's currently doing . . . nothing . . . into a well that's proposed to be doing something (e.g., dumping dirty water into an aquifer). The Court of Appeal reverses, holding that the exception applies.

I totally understand why it probably makes a ton of sense to dump the dirty water back into an already-dirty aquifer nearby, instead of trucking it -- with associated pollution etc. -- to a different already-dirty aquifer somewhere else. But I'm not entirely sure as to why California can't (or doesn't) allegedly require a permit to make sure that dumping the already-dirty water back into an (allegedly) already-dirty aquifer isn't actually dumping water into an otherwise clean (or useful) aquifer, or -- textually -- why turning nothing into something allegedly involves "negligible or no expansion" of that facility.

Seems to me it's a big deal to make sure that our drinking water is, in fact, clean. (Or already so dirty that it doesn't matter.)

It's maybe also a testament to modern society -- or maybe just longstanding geology -- that we already have underground water supplies that are so completely dirty and disgusting that we feel totally confident making them even more polluted.

U.S. v. Perez-Garcia (9th Cir. - Sept. 4, 2024)

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. 

X Corp. v. Bonta (9th Cir. - Sept. 4, 2024)

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.)

People v. Mejia (Cal. Ct. App. - Aug. 30, 2024)

I'm not sure if the correct word is ironic or something similar, but I found it insightful that after hitting and killing a bicyclist while driving (and then fleeing the scene), the defendant in this opinion posted on social media a picture of her walking into the police station with the caption:

"Might be my last day of free dumb."

Yep. Free dumb.

People v. Daffeh (Cal. Ct. App. - Aug. 29, 2024)

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.

People v. Howard (Cal. Ct. App. - Aug. 27, 2024)

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.

Though it seems from this opinion that one downside of illegal strip clubs is that, sometimes, you get shot in them.

Salas v. United States (9th Cir. - Aug. 27, 2024)

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.

Particularly since he loses.

Marroquin v. City of Los Angeles (9th Cir. - Aug. 27, 2024)

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.

People v. Guenther (Cal. Ct. App. - Aug. 22, 2024)

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.)

Mahram v. Kroger Co. (Cal. Ct. App. - Aug. 19, 2024)

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!)

Syre v. Douglas (Cal. Ct. App. - Aug. 19, 2024)

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.

In re Dezi C. (Cal. Supreme Ct. - Aug. 19, 2024)

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.

People v. Obermeuller (Cal. Ct. App. - Aug. 16, 2024)

Two words:

Creepy stalker.

On second thought, let's make that three words: 

Super creepy stalker.

Election Integrity Project v. Weber (9th Cir. - Aug. 15, 2024)

I just thought that this portion of Judge Wardlaw's opinion was especially insightful, so I'll repost it here without elaboration. (The Ninth Circuit affirms therein the district court's dismissal on the pleadings of a lawsuit challenging California's statutory vote-by-mail -- "VBM" -- provisions):

"Finally, we are limited to reviewing the allegations of the complaint as it is written. EIPCa contends in its briefing on appeal that it has “allege[d] that nearly 124,000 ineligible VBM votes were counted in the 2020 election.” Op. Br. at 22. Counsel for EIPCa repeated this assertion at oral argument. See Oral Argument at 41:20–41:28 (Feb. 5, 2024), https://perma.cc/ZYN4-D894. 

These statements grossly misstate the allegations of the complaint and will not be credited. What the complaint in fact alleges is that “124,000 more votes were counted in the 2020 election than registrants with voting histories for that election.” SAC at ¶ 137. In other words, 124,000 people voted for the first time in California in 2020. Such an assertion does not remotely amount to an allegation that 124,000 ineligible voters cast ballots, or that 124,000 invalid mail-in ballots were cast. The only plausible inference we may draw from EIPCa’s allegation is one consistent with the ordinary practice of democracy: 124,000 people, accounting for less than one percent of all votes cast in California’s 2020 general election, voted for the first time in that election.

[Footnote -] Counsel for EIPCa is advised to review Federal Rule of Appellate Procedure 28 and our corresponding Circuit Rules, which require parties to present accurate and reliable support for their claims on appeal. Grant v. City of Long Beach, 96 F.4th 1255, 1256 (9th Cir. 2024)."

U.S. v. Chichande (9th Cir. - Aug. 15, 2024)

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.)

In re Blixseth (9th Cir. - Aug. 14, 2024)

Montana files a claim in bankruptcy court (an involuntary petition for bankruptcy) and affirmatively seeks relief therein. Its counsel unequivocally tells the court, in response to its query, that the state affirmatively waives its sovereign immunity for any damages to the debtor arising from that claim.

The Ninth Circuit holds that Montana nonetheless has sovereign immunity.

It's good to be the king, apparently.

U.S. ex rel. Lesnik v. Ism Vuzem DDO (9th Cir. - Aug. 12, 2024)

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.

People v. Wilson (Cal. Supreme Ct. - Aug. 5, 2024)

The next time you take a taxicab, can you please remember the following facts when deciding how much to tip your driver? Because it's often a horrible job, and they can use all the cash they can possibly get:

"The prosecution presented evidence that in early 2000, Wilson committed a series of crimes against cab drivers in the San Bernardino and Los Angeles areas. On each occasion, the perpetrator called for a cab, then robbed and murdered or attempted to rob and murder the cab driver. The first victim, James Richards, was robbed at gunpoint at the end of a rural road in San Bernardino County. The perpetrator attempted to kill Richards, but the gun jammed and Richards managed to escape. The second victim, Andres Dominguez, was shot and killed in the same location several weeks later. The perpetrator then used Dominguez’s cell phone to request another taxicab from a Pomona company. The driver of the cab that responded, Victor Henderson, was the third victim; he was killed approximately two hours after Dominguez, shot by the same gun used to kill Dominguez.

James Richards picked up a passenger in front of a grocery store in downtown San Bernardino on January 7, 2000. The passenger was going to Bloomington, about 20 minutes away. After reaching Bloomington, the passenger directed Richards to stop on a rural, dimly lit road. There, the passenger drew a gun and robbed Richards. Then, forcing Richards out of the cab and onto his knees, the passenger put the gun into Richards’s mouth and tried to shoot him. The gun jammed, however, and Richards was able to escape to a nearby house. The owner of the house heard Richards screaming and pounding on his door and saw a figure in the street pointing a gun at Richards before getting into a cab and speeding off. The cab company later recovered Richards’s stolen taxi from an apartment complex in Victorville."

Maybe Uber and Lyft drivers are a little bit more protected, since you the identity of the person who calls for the ride is (allegedly) discoverable. But still. Tips would definitely be appreciated. 

In re Zoe H. (Cal. Ct. App. - Aug. 8, 2024)

I can summarize the central point of this opinion by Justice Menetrez without even mentioning the subject matter of the underlying dispute:

"We've told you before in other opinions that the law is X, but notwithstanding that fact, lawyers often keep telling us on appeal that the law is Y, and even some of our colleagues occasionally make the same mistake in published opinions. To be clear: The law is X, not Y. The only time the law is Y in when Z occurs, and yet people keep constantly saying that the law is Y in non-Z settings. To reiterate: The law is X, unless there's Z. So we're going to publish this one as well to make that crystal clear. Yet again."

(It's a dependency case, if you really want to know.)

Seems like an opinion worthy of publication to me. Sometimes people just gotta be reminded.

Greisman v. FCA US, LLC (Cal. Ct. App. - Aug. 5, 2024)

I'm totally on board for Justice Richman's opinion here, which affirms the trial court's decision to enforce an $100,000 -- including all attorney's fees -- settlement of a Lemon Law case. The trial court held that those were the terms to which the parties agreed at the settlement conference, even though plaintiff says the settlement was $100,000 plus fees.

That said, were I the trial court, and I had to guess, I suspect that what really happened was that defendant offered $100,000 total, plaintiff (and her lawyers) thought it was $100,000 plus fees, and the parties then "agreed" to that deal -- each thinking different things. The best evidence of that fact is that the defendant had essentially already admitted liability and previously made a CCP 998 offer of $70,000 plus fees, and the amount of fees had surely substantially increased (potentially by churning) since then. So an offer of $100,000 all-in wouldn't have made sense.

But the standard of review on appeal is dispositive here. The trial court could well have gone the other way. But there was substantial evidence for the factual position it took, so that's the end of the story.

Lesson for the day: Be super careful when to listen to the settlement terms recited on the record by the judge at your settlement conference. Super.

People v. Frazier (Cal. Supreme Ct. - Aug. 8, 2024)

If I'm honest, I probably don't feel as strongly about the refusal to stay this death penalty case (to allow the addition of a Racial Justice Act claim, rather than having it raised in a separate habeas proceeding) than Justices Evans and Liu. Yes, the habeas route almost guarantees massive delay. But it's a death penalty case; it's not like the guy's itching to have the sentence carried out, and it's California, no it's practically not going to happen anyway. The only way it would potentially matter is to the guilt phase. And the guy here is pretty much definitely guilty, and of a heinous crime: he bludgeoned a random woman who was on a lunchtime walk to death with an iron bar and then viciously raped her, his DNA was all over her, there were numerous eyewitnesses to him in the area, all of this plus his incriminating statements to multiple roommate. He's definitely getting convicted on any possible retrial anyway, so I'm not sure that delay as a practical matter means much.

Personally, I'm more interested in the very last thing Justice Evans touches on her dissent: the fact that the trial court denied the defendant's repeated (and unequivocal) requests to represent himself at the outset of his penalty phase. The Court holds that's too late, and that the defendant wasn't really objecting to the ends of the representation (not getting sentenced to death) as opposed to the means of getting there (tactics).

But the reason he wanted to defend himself is because he didn't want his lawyer to say at the penalty phase that his uncle molested him -- an allegation that the defendant insisted was factually untrue. To me, it's a pretty hugely deal to formally accuse someone at trial of molesting you as a child, particularly when (if the defendant is to be believed) that the allegation is false.

Especially when, as here, you're pretty sure you're going to be sentenced to death anyway, since the crime is so heinous -- and that, since it's California, the sentence probably won't be carried out in any event -- if I was a capital defendant, I could definitely see caring more deeply that my relative not be falsely accused of child molestation at my trial than whatever marginal (and/or entirely theoretical) benefit such a claim might (but in fact didn't) have at my upcoming penalty phase. And if my lawyer disagreed with that call, well, that's fine, but then I'd just as soon represent myself, thank you very much.

There's got to at least be some leeway there, right?

P.S. - While Justice Evans concludes her opinion by calling this a "Hobson's choice," I'm not actually sure that's the right terminology, at least in this particular case. A Hobson's choice isn't really a choice at all; it's a take-it-or-leave-it situation, with merely an illusory choice. I get that in some cases, telling a defendant that they can only represent themselves if they do it at the outset of the trial (rather than asking for such relief at the penalty phase) is a total nonstarter, because there's no way a non-lawyer can possibly defend a capital case on the merits. But, honestly, here, I think Mr. Frazier was getting convicted regardless; the evidence against him was simply too strong, and at least as far as I can see, there pretty much was no plausible defense available anyway. So, here, I actually would have found it quite plausible for the guy to represent himself at the outset. I'm confident the result wouldn't have been any different than it was.

Libitzky v. United States (9th Cir. - Aug. 5, 2024)

I kinda like it when the Ninth Circuit publishes its opinions before the usual 10:00 a.m. deadline. It often lets me start my work morning with something interesting.

This morning's opinion isn't particularly complicated. But it does seem unjust. Pretty much to everyone, I suspect. As Judge Lee explains at the end of the opinion:

"This is an unfortunate case with a potentially unjust outcome for the Libitzkys. Everyone agrees that the Libitzkys overpaid their taxes by almost $700,000. . . . The Libitzkys’ accountant, whom they relied on to file their tax returns, failed to meet critical filing deadlines. And with this decision, they cannot sue to recover their overpayments."

It seems especially unfair because, by all accounts, Mr. and Mrs. Libitzky not only routinely overpaid their taxes in advance -- so were hardly trying to game the system -- but are also exceptionally generous people.

A just government would give them back their money. I take no position on which branch should elect to do so.

But it should happen.

Kumar v. Garland (9th Cir. - Aug. 2, 2024)

Imagine that you're riding your motorcycle one sunny day and four men throw you off the thing, push you on your side, and then start kicking and beating you with wooden batons. You get beat like that for a full two to three minutes. (Go ahead, if you wish, and start beating yourself with a club right now to see what that's like. Count to 15. Keep going. Count to 60. Keep going. Now imagine that the person doing that to you seriously wants to hurt you. I bet it's no fun, right?)

You scream and cry during the beating, and eventually, a crowd forms and the men leave. You've got bruises all over, but no broken bones. You go to the hospital, where you stay for two days. Eventually the bruises and pain go away, and you're not permanently crippled or anything like that.

Judge Bumatay would like you to know that you've suffered "no significant harm" from the beating.

Oh, and imagine that you're putting up political posters -- let's say for Trump, or Harris (or Kennedy, even; take your pick) -- in an area that's quite adverse to your particular political philosophy and four men with weapons come up to you, tear down your posters, approach you to attack you (and back off only when a crowd forms), and one of them threatens to kill you if you ever dare put up your political posters again. One month later, four men -- including some of the same men who had previously threatened you -- conduct the several-minute beating referred to above, and at the end of it, one of your assailants tells you that next time he sees you putting up posters like that, he'll shoot you.

Judge Bamatay would like you to know that those death threats are only "vague threats" that don't really count; after all, you never actually saw anyone with a gun.

Suffice it to say that I strongly doubt that anyone who was actually a victim of any of these events would agree with those particular assessments.

(Nor does the majority of the panel.)

Cal. Supreme Ct. (August 1, 2024)

I doubt this is an emerging trend, but August opens up with about as much dissent in the California Supreme Court as we've seen in a while.

Admittedly, there are only two opinions today, but the Cal Supremes are atypically fractured in both.

The first case involves whether one plaintiff in a PAGA suit is allowed to intervene to contest a proposed settlement of a different PAGA suit brought by a different plaintiff but that would effectively bar the first plaintiff's action. Justice Jenkins authors that majority opinion, which garners a total of five votes, holding that intervention isn't automatically allowed, but Justice Liu dissents (joined by Justice Evans), and Justice Kruger authors a separate concurring opinion joined by Justice Groban.

The second case is about what standards the appellate courts should employ to decide whether it was harmless error to not have a jury decide the relevant aggravating factors necessary to justify imposition of an upper sentencing term, a procedure required as of 2022 and applicable to cases that were on direct appeal as of that date. This one's even closer. Justice Corrigan authors the majority opinion, for which there are exactly four votes. Justice Kruger partially concurs and partially dissents, joined by Justice Jenkins. And Chief Justice Guerrero dissents, for a 4-2-1. (Which sounds kinda like a difficult split in bowling, TBH.)

Splits like these wouldn't even be worth comment if they came out of the U.S. Supreme Court; there, they happen virtually every single day. But California doesn't typically see days like today.

So August starts off with a bang.

People v. Hicks (Cal. Ct. App. - July 31, 2024)

I understand the whole part of this opinion about not necessarily being able to strike minority jurors due to their "attitude". That's an amorphous and essentially unreviewable category, as well as an attribution that's historically been differentially directed towards African-Americans (e.g., calling someone "uppity").

So when Justice McConnell doesn't think that explanation for striking the juror flies, I can potentially get behind that.

But this particular juror disclosed that she had two prior felony convictions. One for grand theft. The other for perjury.

I know that she said that she could be fair. Pretty much every juror says the same thing. But I don't know a prosecutor in the universe who'd want on their jury someone with multiple felony convictions -- including one for perjury, hardly a typical offense. Regardless of their race.

The Court of Appeal nonetheless reverses and remands for a new trial, finding that the trial court erred by finding the prosecutor's reasons for his peremptory strike of this juror race-neutral.

That's a tough one for me. Particularly since the prosecutor didn't strike the other African-American on the jury venire. It's just difficult to believe that a similarly-situated white juror wouldn't be struck for the identical reasons.

Maybe opinions like this one are a backhanded way of just getting rid of peremptory challenges entirely. Which might not be a bad thing anyway. I think that, normally, prosecutors find peremptory challenges more valuable than defense counsel, so would ordinarily fight to retain them as an option. But if even the "normal" reasons for striking jurors start to result in potential reversals, maybe now both sides can get on board for eliminating them.

Still, I think that there are a lot of panels in the Court of Appeal that would have come out differently on this one.

Lots.

Bailey v. San Francisco D.A.'s Office (Cal. Supreme Ct. - July 29, 2024)

The California Supreme Court unanimously holds today that even the single use of an unambiguous racial epithet (e.g., the "n-word") can potentially actionable constitute racial harassment in the workplace.

In my (academic) sphere, there are differing opinions about whether it's appropriate (or wise) to use actual racial epithets, rather than a shorthand, when discussing particular cases in which those words appear. Some -- likely most -- professors use a shorthand, while others use the actual words.

For those in California, I wonder if today's opinion will affect that calculus.

Regardless, for those outside the ivory tower, the lesson from today is probably fairly clear: Don't say it. (Or at least recognize that you run at least some degree of litigation risk if you do.)

In re Masingale (9th Cir. - July 26, 2024)

Mr. and Mrs. Masingale filed for bankruptcy and said they were claiming a statutory exemption for 100% of the value of their house. That's too much -- the statute only lets you keep $45,950. But no one objected to their petition, and the Supreme Court has expressly held that if a debtor uses the exact words that Mr. and Mrs. Masingale used on their form, they get to keep the excess -- even the amount about the statutory cap. The Masingale's house had appreciated a ton by the time the bankruptcy petition was finally resolved, so the Bankruptcy Appellate Panel relied on the Supreme Court precedent to hold that they were entitled to retain the full $200,000+ above-statute homestead exemption since no one objected in time.

The Ninth Circuit reverses. It distinguishes the prior Supreme Court case on the grounds that, here, there were other statements in the Masingales' petition that suggested that they were not, in fact, claiming an amount in excess of the statutory limit. So they're limited to the usual amount.

Motivated in part, I'm confident, to disincentivize bankruptcy petitioners from attempting to pull a similar trick in the future.

Seems fine to me. They've changed the relevant bankruptcy form in the interim to reduce any similar potential manipulation in the future. But I don't feel too bad for the Masingales. They got a discharge. There's no need to give 'em the extra couple of hundred grand. That can go to their creditors, and if there's anything left, great, they get that anyway.

I also noticed one last thing about the opinion that made me smile.

In Property class, professors often talk (as you may know) about "Blackacre" and -- sometimes (especially in the modern era) -- "Greenacre". Mr. and Mrs. Masingale's home is in Washington state. In a tiny little community on the eastern border of the state of around 5,000 residents called Greenacres. So the Ninth Circuit repeatedly calls their home the "Greenacres property".

And in this fashion, a law school hypothetical comes to life.

Okonowsky v. Garland (9th Cir. - July 25, 2024)

Free speech and the workplace intersect in complicated ways. Outside the workplace, you can say pretty much anything (with few exceptions) about anyone. Insider the workplace, by contrast, you're limited -- both practically and doctrinally -- in what you're categorically permitted to say without potentially adverse consequences.

But those spaces intersect. Many of the people you interact with on a daily basis are those you meet at work. What can you say about them in your private sphere; e.g., on Instagram?

It's a toughie. As this Ninth Circuit opinion amply demonstrates.

Here, the Ninth Circuit holds that it's potentially a Title VII violation (hostile work environment) for one co-worker to make various derogatory posts on his Instagram page about another co-worker. Read more from Judge Wardlaw if you wish.

I'm just now returning from a family vacation, so don't have much to say about the opinion other than it, at a minimum, demonstrates a practical reality:

Be careful what you publicly say about your co-workers. Your freedom in that sphere is not nearly as expansive as what you're able to say about, say, presidential candidates.

AGK Sierra de Montserrat, LP v. Comerica Bank (9th Cir. - July 19, 2024)

Most of what Judge VanDyke (who authors the opinion) and Judge Miller (who authors the concurrence) seems right to me. The Ninth Circuit previously relied on California state precedent to say that first-party attorney's fees are recoverable as damages when third-party attorney's fees are recoverable. But thereafter came a ton of California appellate cases that held to the contrary, saying that prior California (and federal) precedent was wrong.

Normally, a Ninth Circuit panel is bound by circuit precedent unless the intervening authorities from higher courts make it clear that circuit precedent is wrong. But the standard's different when it's state law, since each panel is "predicting" what the highest tribunal in that state would do. There's more flexibility in that context. So, here, when it's (now) pretty clear that California courts would hold X, a Ninth Circuit panel applying state law can hold X even though prior circuit precedent has held Y.

So far, so good. I agree.

But it seems to me that the panel's opinion, while correct in the current case, is perhaps a bit too broad as a general matter.

Here, the intervening change in California precedent was fairly clear. California precedent was a bit split even at the time of the initial panel's decision, but thereafter, the Court of Appeal's holdings seem almost uniformly tilted the other way. So I agree that California law has changed.

But both Judge Van Dyke and Judge Miller take quite the "permissive" (to use Judge Miller's words) view of the ability of one Ninth Circuit panel to depart from another circuit panel when issues of state law are in play. To quote Judge Miller (with emphases in original, but citations omitted):

"On the other hand, we have stated, albeit without explanation, that circuit precedent interpreting state law “is only binding in the absence of any subsequent indication from the [state] courts that our interpretation was incorrect.' That statement suggests a more permissive view—that a decision of an intermediate state appellate court could be a sufficient basis on which to depart from circuit precedent on a state-law question. . . . Today the court correctly adopts the more permissive view."

Isn't that way too broad?

Imagine, for example, that there are 20 Court of Appeal decisions that squarely hold X, and that none go the other way. On that basis, a Ninth Circuit panel holds that state law is X, and applies and follows it in a given case. In the next two decades, there are 50 Court of Appeal decisions that similarly hold X, all in reasoned opinions, but since there's no horizontal precedent in California, there's also a single outlier opinion by a crazy panel that holds Y. No other Court of Appeal opinion holds Y, and the other 50 Court of Appeal opinions critique the one outlier and say it's wacko.

According to AGK Sierra, a new Ninth Circuit panel isn't bound by the earlier circuit precedent, and can hold that state law is in fact Y. Because there is indeed some intervening precedent that says Y. (Remember: There just needs to be "any" indication from "any" state court that Y is true, and even a single opinion can suffice.)

That seems to me to grant insufficient consideration to the value of horizontal precedent in the federal system. Particularly in the present politically polarized era. A conservative panel that likes Y (or go the other way -- a liberal panel that likes Y) might well be inclined to go with Y in such a setting despite the existence of circuit precedent and the weight of authority in the state. Then you'd need an en banc court to fix the problem: the very thing that Judges Van Dyke and Miller (rightly) want to avoid.

I would think that the better standard would say something like: "Circuit precedent on state law is not binding when there is substantial intervening authority in the state court suggesting that state law on the issue has changed." That's not as tough as the standard for intervening federal authority, which requires "clearly irreconcilable" precedent, but still tougher than the very "permissive" state law standard set forth in this opinion.

A somewhat minor change, perhaps. But I think a valuable one regardless.

Because circuit precedent matters. A fair piece.

Even in state law cases. Predictability, safeguard against political manipulation, etc. All that jazz.

Let Them Choose v. San Diego USD (Cal. Ct. App. - July 18, 2024)

I definitely agree with Justice Dato's opening missive in this opinion, which begins as follows:

"A developed system of justice, with fair and impartial courts to decide disputes among citizens, is in many ways the hallmark of a civilized society. By providing an accessible forum for resolving both economic and philosophical disagreements, courts preserve order and a sense of community, preventing these differences from devolving into active conflict and even violence. Equally important, courts foster attitudes of tolerance for and respectful acceptance of different points of view, traits often sadly lacking in today’s polarized political landscape."

Bravo for that.

He goes on to hold that the trial court erroneously refused to award CCP 1021.5 fees to a group that successfully challenged the San Diego Unified School District's "Roadmap" for a potential future student vaccination requirement for in-person learning during the height of the COVID-19 epidemic. 

Reasonable minds could (and surely do) disagree on that point. The trial court thought that fees weren't warranted because the litigation did not, in fact, change anything; the District abandoned the "Roadmap" for reasons unrelated to the litigation, given the changing dynamics of the epidemic. By contrast, the Court of Appeal concludes that the litigation still achieved a public benefit: namely, the recognition that school attendance requirements (even during COVID) had to be passed statewide, not by local school districts.

Fair enough. Process is indeed important. On that we can likely all agree. Admittedly, not every lawsuit that obtains a precedent qualifies for fees under Section 1021.5, otherwise every dispute that resulted in a published opinion would qualify. But this one was perhaps special. I see the point.

Hopefully the fees ultimately awarded on remand won't be huge. But they will -- and should -- include the fees incurred in this appeal. So they definitely won't be tiny.

But particularly given that no actual physical change resulted from the lawsuit, I simultaneously hope that the courts make sure that the fees are indeed reasonable.

As they should be in any fee award, obviously.

People v. Caparrota (Cal. Ct. App. - July 16, 2024)

As a practical matter, this seems a pretty darn important holding by the Court of Appeal. It definitely ups the ante for any of the readers out there who are trial lawyers in jury trial.

As you may or may not know, under the fairly recently enacted Racial Justice Act -- effective as of 2021 -- certain types of reasons for peremptorily striking potential jurors are now presumptively. Reasons that you might perhaps think would be valid, and that were definitely valid previously, but no longer. 

Here are some of the presumptively invalid reasons under CCP 231.7(e): 

(1) Expressing a distrust of or having a negative experience with law enforcement or the criminal legal system.

(2) Expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.

(3) Having a close relationship with people who have been stopped, arrested, or convicted of a crime.

(4) A prospective juror's neighborhood.

(5) Having a child outside of marriage.

(6) Receiving state benefits. . . .

(9) Dress, attire, or personal appearance. . . .

(11) Lack of employment or underemployment of the prospective juror or prospective juror's family member.

Once you strike a juror, sometimes the other side objects and you're forced to give a reason for your strike. Not surprisingly, sometimes, you give multiple reasons, if only because, typically, you do indeed have multiple reasons why you don't especially like that particular juror.

The Court of Appeal holds today that if any of the reasons you identify are within the presumptively invalid category, your strike fails. Period. Even if your other, nonprohibited, reasons are a valid basis for the strike.

So, at a minimum, know the words you're not allowed to say. Don't include amongst your reasons for the strike that the juror dresses poorly, isn't employed, distrusted the police or the legal system, etc.

Otherwise, you're going to be stuck with that juror.

Just say the reasons that are allowed, not the other ones.

And, critically, know the difference between the two.

Defense for Children Int'l v. Biden (9th Cir. - July 15, 2024)

I'm not sure what plaintiffs thought this lawsuit was plausibly going to achieve.

"Asserting violations of international law, the plaintiffs in this case ask us to enjoin the President and other senior Executive Branch officials from providing military, diplomatic, and financial support to Israel in its ongoing operations in the Gaza Strip. The plaintiffs also ask for a declaration that the United States’ current support of Israel is unlawful."

I guess that, in theory, one could imagine a federal judge somehow being so personally invested in the dispute to somehow find the matter to not involve a nonjusticiable political question. But even in that unlikely event, the opinion would undoubtedly be promptly reversed. So what's the point?

In any event, here, the district court held that it was a political question, and the Ninth Circuit unanimously affirms. The Supreme Court will deny certiorari, and that'll end the thing once and for all.

Were I the public interest groups pondering bringing such a lawsuit, that's not how I would have elected to spend my time and money.