Wednesday, November 24, 2021

Nababan v. Garland (9th Cir. - Nov. 23, 2021)

Sometimes -- perhaps often -- the company of the friends you keep affects your worldview.  Even if you're a judge.

I'm agnostic as to whether Judge VanDyke's experiences are more accurate than mine.  You be the judge.

It's a case about whether the BIA properly evaluated changed circumstances in Indonesia, which in turn required the Ninth Circuit to decide if evangelical Christians were treated worse than different minority religions in Indonesia.  The majority thought that might well be the case.

But in Judge VanDyke's view, separating "Christians" from "evangelical Christians" was a "distinction without a difference."  Based on his experiences, Judge VanDyke believes that "the vast majority, if not all, Christians" attempt to convert other people to the Christian religion; i.e., are evangelical.  And Judge VanDyke expresses this belief in his opinion three separate times; it's not inadvertent.

My own experience is that (1) people commonly use the term "evangelical Christian" to mean something very specific and different from just your run-of-the-mill Christian, and (2) most -- or at least, many -- people of the Christian faith do not, in fact, actively seek to proselytize and convert people to the faith.

Now, I grew up in Virginia, whereas Judge VanDyke was raised in Montana.  And, unlike Judge VanDyke, before law school, I did not get a bachelor's degree in theology from Bear Valley Bible Institute.  Given our different backgrounds and life experiences, it might not be radically surprising if the qualities of the (many, many) Christians I've encountered in my life -- including but not limited to my entire family and extended set of relatives -- are perhaps a little different in the extent of their proselytizing than those at, say, the Bear Valley Bible Institute, or in certain conservative circles more likely to be frequented by Judge VanDyke than by me.

One might perhaps make a lesser claim than Judge VanDyke does, and assert that proselytizing is a tenet of the Christian religion. But I'm quite confident that some Christians take that interpretation quite a bit more seriously than others.  In any event, that something's a purported tenet of your religion does not necessarily mean that one actively practices it; for example, saying that all Catholics "abstain from premarital sex and don't use birth control" is fairly wildly inaccurate, at least in my experiences.

It's not unusual to see a judge's worldview reflected in his or her opinions.  But you don't generally see that principle extend to somewhat verifiable statements of fact.

Tuesday, November 23, 2021

City of Oxnard v. County of Ventura (Cal. Ct. App. - Nov. 23, 2021)

Justice Tangeman may well be right that this is what California's EMS statute requires. That's what the trial court thought, and on appeal, the panel unanimously agreed.

But, if so, my intuition is that the principle behind the statute might be silly.

The EMS Act says, essentially, that after 1980, if a city joins a joint powers arrangement with another city or county for the provision of ambulance services, it can't withdraw from that agreement.  Ever -- at least according to the Court of Appeal.

So no matter how terrible the ambulance company, no matter how abysmal the service, and no matter how deprived residents of the City are for ambulances, the City has no recourse.  Only the relevant county can decide -- and as long as the county is happy, that's the end of the matter.

Here, the City of Oxnard is understandably doesn't like the existing ambulance provider.  The city has a lot of poor people, whereas the county has a lot of rich people.  The ambulance company (allegedly) loves to hang out in the rich areas, and hate to pick up people in the poor areas.  The response time for calls in the city is a lot longer than the response time for calls in the county.  The "floater" ambulances were twice as likely to be located in rich areas than in poorer areas.  Delays in responding to city calls were twice the number of delays in responding to calls in the county.  Stuff like that.

No matter.  The county loves the ambulance company.  (Perhaps you can see why.)  But the city can't ever withdraw from the agreement and hire its own provider.  Again:  Ever.

I get the principle that there needs to be some stability in ambulance services so that companies can make investments and the like.  But it'd be more than sufficient for the statute to allow cities to leave after five or ten years or so.  That's more than enough time to recoup your investment.  Plus, the statute allows the county to leave whenever it wants, so that's hardly proof that companies need an infinite contractual period for sufficient stability.

Seems to me the statute should be amended.  The Court of Appeal didn't (at all) suggest that, so I thought I would.  Seems to me like there's a classic agency problem here; cities have limited input, so get hosed.

Good luck getting an amendment through the lobbyists for counties and ambulance companies, though.  Yet another agency problem.

Friday, November 19, 2021

Goulart v. Garland (9th Cir. - Nov. 18, 2021)

There are three opinions in this Ninth Circuit case.

Judge Paez writes a short (four paragraph), moderate opinion that affirms the denial of a request to reopen an immigration case; as a result, the petitioner stays deported.

Judge VanDyke concurs in the judgment and authors a lengthy discourse, and Judge Korman (sitting by designation) authors a dissent.

Here's a brief snippet from the debate between Judges VanDyke and Korman:

Judge VanDyke: "[O]ne wonders: Why would one champion charting a completely new and unsupported path of legal reasoning just to avoid the lawful removal of a convicted burglar? I agree with Judge Korman’s laudable paean to doing equal justice. But in our system of government that means respecting the laws passed by Congress, not bending them—including our nation’s immigration laws." (emphasis in original)

Judge Korman: "Judge VanDyke questions why I have bothered to “champion” the cause of a convicted burglar. The answer should be obvious. The judicial oath, which was adopted in the Judiciary Act of 1789, requires us to “administer justice without respect to persons, and do equal right to the poor and to the rich.” See 1 Stat. 73, 76 (codified at 28 U.S.C. § 453). We take such an oath, which derives from biblical teachings, see Deuteronomy 1:17, so as not to be blinded by our like or dislike of the parties. We are not called to decide whether Goulart is a good person, but rather whether a person who has been banished from the United States without legal justification should be permitted to seek to return. The Supreme Court has held that the precise statute under which Goulart was deported violates the Constitution. Principles of law and equity require that he be permitted to move for reconsideration in this case."

Thursday, November 18, 2021

Blizzard Energy v. Shaefers (Cal. Ct. App. - Nov. 18, 2021)

Just a couple of quick thoughts about today's opinion from the Court of Appeal, which affirms the addition of a judgment debtor but remands to see if the wife is an innocent spouse who should't be added:

(1) I think the opinion should add the word "allegedly" before its discussion of the separation agreement stuff. The wrongdoing husband owned 50% of an LLC -- the one added as a judgment debtor -- and his wife owned the other 50%. The trial court found that the wife's interest in the LLC could be included in the debt (since it was community property), but the Court of Appeal wasn't so sure. The panel said that since the parties separated in 1996, and all the fraud happened thereafter -- and didn't actively involve the wife -- maybe she's an innocent spouse and in the interests of justice her interest in the LLC shouldn't be attached.

Maybe. But the Court of Appeal repeatedly refers to their separation agreement, the fact that they lived apart since then, and all this other stuff as an established fact. Maybe it is; I can't find the decision below. But the trial court allowed the wife's interest to be attached, so I'm not at all certain that the trial court made a factual finding on any of those factual points recited by the Court of Appeal. And there's certainly reason to suspect that, uh, maybe those facts are not true; in particular, the fact that the parties allegedly separated in 1996, yet continued to own a boatload of companies together, didn't actually file for divorce until 2019 -- after the fraud judgment was entered and collection efforts began -- etc. etc.

There's a problem sometimes when the appellate court makes a statement of fact that supports its decision and then remands, and then the party that originally lost below says: "Law of the case!  You can't dispute that fact any longer, since the Court of Appeal found it was true" even though what the Court of Appeal really meant so say was that one party said it was true and it might well be true.  So you gotta be careful about that.

And maybe the opinion is here, and maybe it's not.  Just be careful.

(2) Justice Yegan's opinion makes a joke in the first paragraph.  Or a funny reference or whatever.  He says: "Blizzard Energy, Inc. [] invested in a tire pyrolysis project in Kansas. A Kansas jury returned a $3.825 million fraud judgment in favor of respondent and against appellant Bernd Schaefers (Schaefers). We are not in Kansas anymore. The fraud judgment was entered in California. The instant appeal flows from the California trial court’s decision to add a judgment debtor pursuant to the “outside reverse veil piercing” doctrine."

Thank you, Dorothy.  I admittedly smiled.  But I was also thinking that the Kansas courts themselves gotta be really tired of that one.  (According to Westlaw, that line's in twenty different opinions, and 70-plus law review articles and the like.)

(3) I made a quick search to find out more about the underlying fraudster, Bernd Shaeffers. Among other things, he was apparently a producer on the the 1984 film version of The NeverEnding Story -- or at least the names, which aren't totally common, are the same; I'm not actually vouching for whether they're the same person or not. Regardless, the reference to that movie reminded me of my favorite lawyer joke from The Simpsons.  (Homer wants to file a false advertising suit against an all-you-can-eat seafood place that eventually kicked him out for eating too much, and here's what his classic boob of a lawyer says.) Classic.

Tuesday, November 16, 2021

Argonaut Ins. Co. v. St. Francis Medical Center (9th Cir. - Nov. 16, 2021)

Here's a Ninth Circuit opinion that only the hard core civil procedure geeks will enjoy:  Whether the filing of a conditional counterclaim in response to a federal declaratory relief action obviates the district court's common law discretion to decline to exercise jurisdiction over such claims.

Exciting, eh?

Okay, but you know what is exciting about the thing?  The attorney for the appellant is from a firm in Minneapolis; not something you see in the Ninth Circuit every day.  And the underlying litigation, as well as the oral argument in the Ninth Circuit, was in . . . Hawaii.

Going from snowy Minnesota in February 2021 for a Ninth Circuit oral argument in Hawaii.  That does not suck.

Even if, as here, you lose.


Monday, November 15, 2021

Noble v. Superior Court (Cal. Ct. App. - Nov. 10, 2021)

The (successful) attorney for the real party in interest in this opinion is Skye Emery. That's a classic millennial name: Skye.  I wondered how many lawyers in California shared that first name.

The answer:  Nine.

Not surprisingly, almost all of them joined the bar within the past decade (i.e., after 2010); indeed, all but two.  Apparently the name "Skye" became popular after a character named "Skye Chandler" was added to various popular soap operas in 1987.  If you're born -- or conceived -- around or after 1987 or 1988, you typically graduate law school and pass the bar post-2010.  Makes sense.

The earliest California "Skye" attorney -- Skye Gibson -- joined the bar in 1998 and is now inactive and lives in Jamaica Plain, Massachusetts.  The other pre-2010 "Skye" involves a very sad story:  that of Skye Donald, who joined the California bar in 2004, started teaching legal writing at UCLA Law in 2009, was diagnosed with a brain tumor the next year, and succumbed to cancer in 2006, at the age of 43.

I'm sure we'll see more California attorneys with the first name of "Skye" at some point, though the most recent admittee was five years ago, in 2016.  I guess there was a big blip of popularity there once the soap opera character was added.  (Though, interestingly, the name appears to have stayed popular thereafter, but not for future attorneys.  I know there's a small sample size here, and we're only talking about a single name, but I wonder if parents who give their baby -- or at least daughter -- a newly-popular first name are more likely to end up having that child become an attorney than parents who give that same first name to babies who are born when that name is still relatively novel but a little well-worn.  Maybe there's a slight demographic, or educational, or parent-raising difference between the two groups?  An area just waiting for extensive empirical research, I'd say.)

Finally, yeah, yeah, there are (relatively) plenty "Skyler" and "Skylar" attorneys -- and even a couple of "Sky" ones -- but those don't count.  (Plus, even among those names, the earliest member of the bar was in 1998).  We're only talking "Skye" today.

Friday, November 12, 2021

George v. eBay (Cal. Ct. App. - Nov. 12, 2021)

I get it, I get it, I get it:  the Court of Appeal is sick and tired of this long-running and oft-appealed serial litigation, and thinks that eBay should win.  Moreover, there's a lot to that:  the plaintiff does indeed seem to be mostly complaining merely about the nature of the contract to which it agreed.

Mind you, there's a lot for buyers to complain about there; e.g., the fact that eBay pretty much always refunds purchases if the buyer is unhappy for any reason, which very much helps fraudulent buyers and hurts the sellers.  But that's largely a reason just to not sell on eBay, which is one's choice.  There are other platforms and other ways to sell.  The Court of Appeal, understandably, doesn't think that satisfies the legal standards for unconscionability.  Moreover, it's tired of seeing this same litigation on behalf of various different eBay buyers again and again.

The thing is this, though:  in the process of getting rid of what you think's a meritless lawsuit, you've got to be extra careful not to make bad law.  Particularly on appeal.

My thought in this regard relates to how the panel gets rid of a couple of different causes of action -- a tiny fraction, mind you, of the twenty-plus causes of action that plaintiff pleads.  Here's what Justice Richman says about those claims:

"The 12th, 13th, and 14th causes of action are styled respectively “Breach of Contract for Hiding Plaintiffs’ Listings,” “Intentional Interference With Prospective Economic Advantage re Hiding of Listings,” and “Deceptive Business Practices in Violation of Business and Professions Code section 17200.” As indicated, all are based on the fundamental premise that eBay hides listings, “secretly,” “completely,” and on a “regularly recurring basis.” As appellants’ brief puts it at one point, eBay allegedly makes certain “listings completely invisible and not capable of being seen by prospective buyers.” . . . 

To begin with, at no place do appellants identify any listing on eBay that was made “completely invisible” or “completely hidden.” Their brief does make the conclusory assertions that “all” of their listings were hidden “for a substantial period of time,” and that they “had no chance of selling their items” through the eBay website. But while the SAC alleges “many” listings were hidden, it lacks any allegation regarding any specific listing that could not be found or when the hiding allegedly occurred. Instead, the SAC theorizes that because sales allegedly decreased, listings were hidden, ignoring the innumerable other reasons that would readily explain why their sales may have fluctuated. Such speculation cannot support a viable claim. (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219–1220.) Again, Judge Hernandez’s holding is spot on: “the ‘hidden listing’ allegations remain deficient . . . [w]ithout more specific factual allegations eBay cannot possibly determine whether any listings were actually not displayed (i.e., were ‘hidden’) or if so, why.”

Not only that, facts alleged elsewhere in the SAC undermine the existence of any such practice. For example, plaintiff Cobb alleges he was initially unable to find some of his listings but found them “several days later,” again rebutting plaintiffs’ claims of listings being “completely hidden.” Were all that not enough, appellants’ brief acknowledges that eBay has the “contractual right to downgrade visibility.”

On those bases, the Court of Appeal dismisses, inter alia, the claim for breach of contract.

Let's unpack the various different reasons the Court of Appeal gives for this dismissal.

First, the panel says that the complaint alternatively says that "many" of the listings were hidden, but elsewhere says that "all" of their listings were hidden "for a substantial period of time."  Well, okay, that might be a little unclear, but those claims aren't totally contradictory; I presume what they mean is that sometimes, all of their listings were hidden, and that sometimes, only lots of them were hidden.  I could easily see that being a breach of contract if true.  Plus, last I checked, plaintiffs were permitted to plead in the alternative anyway.

Then Justice Richman says that there's a lack of detail, and that seems to be one of his bigger points:  the complaint "lacks any allegation regarding any specific listing that could not be found or when the hiding allegedly occurred."  Okay, maybe that's a reason to order a more definite statement, but that's not the basis for dismissing a complaint with prejudice. Plus, since when am I required in a complaint to list every date and item with particularity?  If I say in a complaint:  "Defendant repeatedly punched me in the face," that states a claim:  I'm not required to say how many times, or on what days, or with what instrument, or on what part of my face.  We're pretty much all about notice pleading here in the United States -- unlike those stinking English we kicked out back in the eighteenth century -- and rely on discovery to flesh out those details, not the pleadings.  Defendant can deny the allegation, or deny it for lack of information and belief, and we move on.  That on "omitted details" in this regard is fairly clear; or at least it was before this opinion, which sort of mucks it up in the service of the purportedly good cause of getting this particular case kicked.

Then the Court of Appeal says that claim is deficient because "the SAC theorizes that because sales allegedly decreased, listings were hidden, ignoring the innumerable other reasons that would readily explain why their sales may have fluctuated. Such speculation cannot support a viable claim."  That's even an even more severe (and worse) pleading requirement than the Supreme Court created in Tombley and Iqbal -- and that the California courts have (tellingly) rejected.  You don't at the pleading stage come up with defenses for the other side sua sponte and kick the complaint on that basis.  If the complaint says "Defendant did X and it harmed my business," then that's a factual claim, and you accept it for purposes of a demurrer.  Plus, it's WAY plausible that if you in fact hide someone's listings, their sales will go down.  Indeed:  Duh!  Of course they will.  If there's an alternative explanation, and eBay can prove that hiding the listings actually made sales go up, or that there's a different explanation, great, they can establish that in an MSJ or at trial.  We don't bounce complaints on the pleadings simply because a judge thinks that the damage allegations of the plaintiff are perhaps overstated or come from an alternative source.

Then there's the fourth basis for dismissal:  that the "facts alleged elsewhere in the SAC undermine the existence of any such practice. For example, plaintiff Cobb alleges he was initially unable to find some of his listings but found them “several days later,” again rebutting plaintiffs’ claims of listings being “completely hidden.”  That's a good example of being perhaps way too one-sided.  The complaint says that some listings were hidden for a while.  Maybe the listings here were gone for only a couple days, but if that's true, and if the contract requires them to be always visible, then that's a breach -- and the fact that the hidden listings were visible several days later doesn't mean that plaintiff is wrong or has contradicted himself or that something like judicial estoppel or whatever the Court of Appeal thinks it's relying on here permits the dismissal of the complaint.  No way.

Which leaves only the final sentence: "Were all that not enough, appellants’ brief acknowledges that eBay has the “contractual right to downgrade visibility.”  Okay.  Maybe that's a defense, right?  But surely we need more than just this hint, no?  Let's hear about the contract.  Does it really allow eBay to totally hide the listings?  If so, great, kick the thing.  But we'd need to know the actual terms of the contract -- not merely a five-word snippet from a brief -- analyze how they interact with the other contractual terms, evaluate whether totally removing listings is actually a breach (does it merely "diminish visibility" or do something more serious?), etc.

I'm not saying that plaintiff's got a great breach of contract claim.  Maybe it does, maybe it doesn't.  But to figure it out, I'd definitely need more than what I have here.  More importantly, I definitely don't want litigants or trial courts citing or relying on this case for the propositions for which it facially seems to stand; e.g., that your complaint gets dismissed if you don't provide dates or itemizations, that you get bounced if your complaint doesn't affirmatively negate any possible alternative explanations for how you were damaged, etc.  That'd be much worse systemically then anything this tiny little case will ever do to anyone -- particularly if we can get it bounced on the actual merits because it's not a breach since the eBay contract allows this stuff.  (Personally, if eBay did, in fact, totally hide someone's listings for absolutely zero reason, I can in fact see that as possibly being a breach -- though I suspect that's not what in fact happened, and that if listings were indeed hidden, it was probably for a reason spelled out in eBay's contract.  But, again, that's a matter for discovery or the merits, not the pleadings.)

As they say, bad cases sometimes make bad law.

Especially if you're not careful.

 

Thursday, November 11, 2021

Haytasingh v. City of San Diego (Cal. Ct. App. - Nov. 11, 2021)

The Court of Appeal's opinion in this case -- from lovely San Diego, and involving our lovely beaches and lovely surf -- came out back in July.  Today, the California Supreme Court denies review, but a majority of the justices (four) author a statement concerning the denial of review to urge the Legislature to look at the underlying statute and potentially change it.

That's super rare.  It's totally consistent with the Court of Appeal's opinion, in which the justices also told the Legislature that it might well want to take a look.  So I suspect it'll have a real impact.  (And should.)

But it's definitely something you don't see every day.

(Just like, I'll add, you definitely don't see a justice on the Court of Appeal quote a line from Star Trek's Spock in the opinion, which Justice Dato does in footnote 9 of his concurring opinion.)

Tuesday, November 09, 2021

Kremerman v. White (Cal. Ct. App. - Nov. 9, 2021)

Justice Stratton gets it spot on here.  No way the default judgment should have been entered.  No way.  There simply wasn't proper service.

It's not often you see a landlord-tenant dispute in the Court of Appeal.  But then again, this isn't your usual rental.  When I was reading the facts, I thought that I was confused, since it talked about a $16,000 yearly rent and a $25,000 security deposit.  Why would anyone pay a $25,000 deposit for a rental that only costs roughly $1,500 a month?

Oh, my bad.  It's a year-long lease, but it's $16,000 a month.  Got it.  This is not your ho-hum rental.  Even in Studio City.

The other thing that popped into my head was a line in the opinion from the defendant about why she was not at home during one of the various service attempts: "She stated she was out of town during the process server’s third stake-out on May 14, 2019, as she was in New York City to appear on the Wendy Williams show."  Oh.  The Wendy Williams show, eh?  Defendant must be famous (in addition to wealthy).

So I go back and look at the caption.  Her name is "Angela White".  Never heard of her.

So I hit up Mr. Google.  Which -- let just warn you -- has a very NSFW website as its first result.

What I should have done was simply read all the footnotes in the case first.  Justice Stratton explains in one of them:  "The parties interchangeably refer to appellant as Angela White or Blac Chyna, her professional name. We refer to appellant by her legal last name, White."

Oh.  Blac ChynaHer I've heard about. The whole kid-and-crazy-relationship-with-Rob-Kardashian thing.  Plus the modeling and . . . other stuff.

Anyway, Ms. White wins.  As she should.

Plus, to be honest, the landlord sounds like a . . . not good person.  His name is Michael Kremerman.  He rents the place to Ms. White, she re-ups the lease, and then she says she wants to leave early because she's bought a house, and he says, fine, though you'll still owe four months of rent if I'm not able to find someone to rent the place.  (The agent's actual words in the email were:  “The owner is happy to let [White] out of the contract, but as you may know, she is obligated to pay rent through the term of the lease, or until the Landlord finds new tenants that are willing to pay the same amount that she’s currently paying.”).  Cool, that's the law.

Then Ms. White moves out, and the landlord charges Ms. White four months of rent, saying that he was unable to lease the place.  (Then he takes her default, and garnishes her bank account.)

But check out what Ms. White's attorney subsequently finds (and presents to the court):

"White included as an exhibit the Zillow history of the Studio City property, which showed that on December 6, 2018, Kremerman listed the property for sale for $4.95 million, and then on December 7, 2018, he listed it for rent for $22,500 per month, “over $6,000 per month more than [White] had paid for rent.” On December 17, 2018, the rental listing was removed. On January 9, 2019, the property was sold; escrow closed on March 5, 2019. White argued “[h]ad [her] former landlord instead listed the [property] for rent . . . for $16,480, he would have been able to find a new tenant very quickly.” She also contended Kremerman improperly sought future unpaid rent for the month of March 2019 when Kremerman “no longer even owned the leased premises” as of March 5, 2019 when escrow closed."

When I hear that, I'm begging to find a way to reverse the default.  Which is the right result anyway.

Because, IMHO, the landlord is not un-sleazy.

Monday, November 08, 2021

People v. Revels (Cal. Ct. App. - Nov. 8, 2021)

I've seen (or read about) a lot of weird things happening in court; clients assaulting their lawyers, lawyers going crazy in front of the judge, witnesses freaking out, etc.

But I've never heard of (1) a juror looking like she's fallen asleep (okay, that one happens a lot, but wait for it . . .), (2) the trial judge calling the juror's name four times, still with no response, (3) a doctor who's an expert witness on the stand at the time going over to the juror and checking her out, and then (4) after examining the juror, declaring: "She doesn't have a pulse."

Yikes!

Given the various admonitions and other curative efforts here, the Court of Appeal holds that there was no prejudice in not ordering a mistrial.

Still:  Freaky, eh?

P.S. - The juror ended up just fine, thankfully.

Thursday, November 04, 2021

South Coast AQMD v. City of Los Angeles (Cal. Ct. App. - Nov. 4, 2021)

Here's what I was about to write yesterday about this opinion before I ran out of time and had to teach class (and then meet with students afterwards during office hours):

"Here's the first paragraph of this opinion.  Can you tell who wrote it?

'A case within a case can arise when a legal malpractice suit accuses lawyers of poor work. The main case is the malpractice suit: were the defendant lawyers’ performances deficient? The case within the case is whether the lawyers’ performances mattered. If the underlying suit on which the lawyers worked lacked merit, then their alleged malpractice could not have had an impact, because the client would have lost anyway. The issue is causation: whether possible malpractice could have caused harm. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1239–1240.) This appeal follows that pattern.'"

I also had some tangential comments about the merits of the case, but whatever I ran out of time.  In any event, merits aside, I was surprised that I was able to figure out who wrote the opinion -- which I scrolled down to right after reading the first paragraph -- even before I looked at the caption to see what district it was from and even before I read anything else.

But then, today, I read this opinion, which had the following opening paragraph:

"A labor union moved to intervene in an environmental dispute about the Port of Los Angeles. The union is the International Longshore and Warehouse Union, Locals 13, 63, and 94 (the Union). The trial court denied the motion because concerns about expanding the case’s scope outweighed the Union’s interest. We will introduce the many actors and events in this multipolar environmental dispute by using the allegations of the petition filed by South Coast Air Quality Management District (the Air District). Then we explain why denying permissive intervention to the Union was proper. Statutory references are to the Code of Civil Procedure."

At which point I thought:  "Hmmm.  I'm pretty sure I know who wrote this one as well.  Same person as yesterday, right?"

And then, when I saw the next paragraph, I was certain of it:

"The Port of Los Angeles is the busiest seaport in the Western Hemisphere. It is critical for U.S. trade with Asia, and there is a lot of trade with Asia."

I honestly can't put a figure on precise why this jurist's writing style is so unique.  Sure, in the last of those paragraphs, there's the whole "short, pithy statements of obvious fact that are kind of funny" thing going on, and that's a dead giveaway.  But those first paragraphs don't have much of that, yet, still, of the 100+ justices on the Court of Appeal, you can pretty reliably figure out which one is writing stuff like that even from a single paragraph.  (Or at least you can after a while, if and when you read every single published opinion over the years.)

Anyway, it's a unique writing style that's not mine, but that (mostly) works for me as a reader.

It's this jurist, by the way.  If you didn't already know.

Tuesday, November 02, 2021

Mitchell v. Las Robles Medical Center (Cal. Ct. App. - Nov. 2, 2021)

Appellant tries to overdose in 2017 by taking 60 Naproxen (Aleve) tablets.  She goes with her husband to the emergency room at 7:23 a.m. and has already vomited twice.  An ER doc takes her history, and a half hour or so later a nurse puts an IV in her arm.  Nearly two hours later, appellant walks to the toilet with her husband and collapses, injuring her face and knee in the fall.  She files suit over these injuries in 2019.

Justice Yegan is right that this lawsuit is barred by the one-year statute of limitations for medical negligence.  That's the underlying claim, so the statute applies.  The trial court got it right too.

That said, it's not exactly a great look for Las Robles Medical Center.  As far as I can tell from the opinion, they basically didn't do anything at all for the patient for over a couple of hours after she shows up after a suicide attempt.  As far as I can tell, no medications, only a cursory review by the doctor, etc.

I know that ERs are often backed up, but seriously?

At least the hospital wins the lawsuit.  Even though it's far from the best advertisement for its ER.

Monday, November 01, 2021

Chase v. Wizmann (Cal. Ct. App. - Nov. 1, 2021)

I might be a little biased about this one -- at least I'm up front about it -- because my house has both a pool (and hence a pool pump) as well as air conditioning (though, to be honest, we haven't used the AC in at least three years).  So when I first read the facts of this case, and saw that it was a lawsuit brought by someone in a tony Hollywood Hills residence against his neighbor for "private nuisance" claiming that the neighbor's AC pool pump were allegedly too loud, I thought:  "Get real, dude.  And a life." 

(Plaintiff and his wife compared the noise to "a 'jet engine' or 'airport runway,'" which, I mean, come on, yes, it's a little annoying, especially if the AC fan and/or pool pump is near your bedroom window, but if you really think that's like being on an airport runway -- well, you clearly haven't been on a lot of airport runways.  Sample tesimony:  "Sylvia Chase likewise declared it was 'unbearable and lasted for hours,' 'like someone was gunning a jet engine under our window.'")

Given that (admittedly unfair) predisposition, I was a little surprised that the trial court granted a preliminary injunction against running the stuff, and that it ultimately ordered the equipment moved to the other side of the defendant's house.  Similarly, I was a bit surprised that the Court of Appeal affirmed.  Not stunned -- standard of review, after all -- but a bit surprised.

But then I read that various experts on both sides measured the sound levels coming off the stuff and discovered the following:

"With two condensers, the filtration and spa pumps running, the waterfall running, and the spa heater running, Chase’s expert measured 57 decibels in the backyard and in the side yard, and 51 decibels at the patio door; Wizmann’s expert measured 57 decibels in the backyard and in the side yard. Both sides agreed that many of these decibel levels still exceeded the limits of 45 decibels at night and 55 decibels during the day allowed by LAMC section 112.02, subdivision (a)."  As well as that "Chase hired an acoustical expert who measured the equipment noise at 65 decibels on the afternoon of June 9, 2020. Chase also obtained a personal sound level meter to monitor noise levels and measured as high as 73.5 decibels during the day."

I will say:  57 decibels sounds like a lot.  Especially since the LA municipal code seems to limit noise during the day to 55 decibels, and during the night to 45 decibels.

But it turns out that conversations in a restaurant, or background music, or even an ordinary AC unit at 100 feet are 60 decibels loud.  Geeze.  Does that mean that no one in LA gets to run air conditioning at night -- or even during the day (since 60 is above 55)?  Seems crazy.

I get it; these neighbors hate each other, and are rich, so okay, they sue each other.  But I was surprised that the trial court and Court of Appeal were really giving this one a ton of credence.

Though I wonder if this part of the opinion had anything to do with the ultimate result:

"Since 2015, Wizmann has operated his property as a short-term rental. . . . In June 2018, the City of Los Angeles cited Wizmann’s property as a public nuisance due to repeated large, unruly parties by renters, illegal parking, burglary at the property, refuse in the street, and neighbor complaints of public urination, public intoxication, fistfights outside the property, and other illegal activity. The city found Wizmann in violation of multiple sections of the Municipal Code, including LAMC sections 41.57 (Loud and Raucous Noise Prohibited), 116.01 (Loud, Unnecessary, and Unusual Noise), and 112.01, subdivision (b) (amplified music in residential zone audible beyond 150 feet)."

Is this legally relevant to whether a regular old AC unit and pool pump are really private nuisances?  Not at all.  Does it perhaps nonetheless affect the way a judge might look at the case?  It might just.

Oh, and I was looked to see if I could find out anything more about the defendant online to explain just why this dispute received the treatment that it did.  After doing so, I found the following line in the LA Times -- to be clear, I'm not saying it's the same "Benjamin Wizmann" as the defendant, 'cause I have no independent knowledge of anything; all I know is that the names and spelled the same and that they both seem to have residences in the Hollywood Hills.  But here's the report:

"Benjamin Wizmann, 41, was arrested at his Hollywood Hills home last week on suspicion of importing almost half a million ecstasy tablets."

Well then.  That's probably some additional color as well.  (And, again, I'm not saying it's the same "Benjamin Wizmann from Hollywood Hills" in both cases -- though, if it was, that might explain the following only-somewhat-cagey line from the Plaintiff's answering brief in the Court of Appeal:  

"Wizmann is a convicted felony drug dealer who regularly flaunts the law.  [Cites]

Anyway, here's what I know:  Even an ordinary air conditioner and pool pump can be too loud. I knew they could be too loud when they were damaged or worn or whatever.  Apparently, even when they're used as intended, your neighbor can potentially sue you and win.

Good to know.

Friday, October 29, 2021

Dept. of ABC v. IBOPE Elks of the World (Cal. Ct. App. - Oct. 29, 2021)

Wait:  You mean to tell me that the San Bernardino Elks Lodge sells weed at the Lodge?

Apparently so.

This ain't your father's Elks lodge.

Thursday, October 28, 2021

Harris v. County of Orange (9th Cir. - Oct. 28, 2021)

Want to see a case that took forever to get resolved?

Here you go.

The current lawsuit was filed in 2009 -- a dozen years ago -- and even that suit was a follow-on action to a lawsuit filed in 2007.  In essence, retired Orange County employees claim that they had a vested right to retirement contributions by the County.  The County won the original 2007 suit on summary judgment, the appeal went to the Ninth Circuit and, after oral argument, the panel certified the  underling state law issue to the California Supreme Court, which then answered the question.  During this process, the present suit was filed.

Thus began its own tortured procedural history.  In 2011, the district court granted the County judgment on the pleadings.  Another trip to the Ninth Circuit.  Which reversed in 2012.  Back in the district court, there were a couple of amended complaints filed, and more motions to dismiss, which the district court (again) grants.  Back to the Ninth Circuit again.  Another reversal.  Back to the district court.

Then, on remand, there's discovery, and finally a motion for summary judgment filed by the County.  Which the district court grants.  Yet another appeal to the Ninth Circuit.

Which affirms, albeit in a split opinion.

That ends the case.  At least for now.

Maybe they'll be an en banc call.  Maybe there will be a petition for certiorari.

But, most likely, after a dozen-plus years, the litigation is finally over.

All but the shouting, anyway.

Tuesday, October 26, 2021

Uribe v. Crown Building Maint. (Cal. Ct. App. - Oct. 26, 2021)

I like the crafty litigation tactic employed by counsel for the defendant in this case.  Smart.

But I also like that the Court of Appeal doesn't let it work.  Even smarter.

Plaintiff files a private attorney general (PAGA) action that says that his employer failed to reimburse him for required uniforms and footwear he needed on the job.  The parties mediate the dispute, and propose to settle it.

But defendant says:  "Hold on.  In a totally different suit, we're facing a class action that claims that we didn't reimburse our employees for their required cell phone use.  We'll agree to settle your case -- which (as you'll recall) is about something totally different (uniforms and shoes) -- only if you agree to amend your complaint to include the whole cell phone thing, and then we'll pay you your money."

Plaintiff, not surprisingly, is fine with that; he (and his lawyer) just want to get paid.  So they amend the thing, settle it, and move for approval, which the trial court grants.  Over the (totally anticipated) objection of the plaintiff (and his lawyers) in the other case, which just got settled around.

Nice job by defendant.  Get something for (basically) nothing.

But the Court of Appeal reverses.  Justice Goethals holds that since the plaintiff didn't originally assert a cell phone claim in his original PAGA notice, he doesn't have standing to settle the dispute.  So the whole scheme falls apart.

You can settle the case you brought, but not someone else's case.  At least in a PAGA dispute.

Nice try, though.

Thursday, October 21, 2021

Doe v. Damron (Cal. Ct. App. - Oct. 21, 2021)

A married couple lives in Georgia but travels to California on vacation; while in California, the husband (allegedly) viciously assaults his wife.  Can the wife sue in California for this tort?

Of course she can.  The Court of Appeal reverses the trial court's contrary decision below.

This is a pretty simple issue; indeed, your basic first-year law student would get this one right.  I will say that Justice Burns' opinion could perhaps have been a bit clearer than it is.  The fight here is not about minimum contacts (which everyone pretty much admits exists), but rather the "fairness" factors.  Justice Burns correctly notes that these factors need to be "super" unfair (e.g., a "compelling" case) for there to not be personal jurisdiction here, and, yep, they're very much not.  Hence the result, which is spot on.

But it bear mention that these are factors, which you weigh against each other pro and con.  Today's Court of Appeal opinion instead reads like the various components are separate arguments or requirements or the like, which makes the resolution a bit more confusing than need be.

They're factors.  Maybe, at most, one or two of 'em lean slightly against the exercise of personal jurisdiction by California.  But not by a lot, and in any event, the others don't.  Hence there's not a "compelling case" that jurisdiction here is unfair.

That's all one needs to say.

Wednesday, October 20, 2021

Lara v. Menchini (App. Div. Sup. Ct. - Oct. 20, 2021)

One of the cute things about first-year law students -- and, trust me, it's indeed cute -- are the tiny little verbiage mistakes they make.  For example, they often mispronouce words that lawyers easily know how to pronouce; which totally isn't the student's fault, of course, since it's probably the first time they've ever seen the word, which is why it's "cute" when a first-year student does it but horribly embarrassing when, say, a 30-year attorney does it.

It's also cute -- and, again, this is totally common -- when they use words in an improper context, again with no preexisting reason for the student to necessarily know the "right" context.  To take what is perhaps the most common example (in my experience):  first-semester law students in my Civil Procedure class will sometimes say that the jury found the defendant in a civil case "guilty" and awarded damages, at which point I gently remind them that "guilty" is a criminal law concept and that in the civil context we don't use that word, and generally say instead that someone's "liable" or not liable.

So I get that I have to sometimes say that to first year law students.  But, until today, I didn't think I'd be in a position to remind the Appellate Division of that fact.

Yet here we are.

Judge Fleming makes this nomenclature error (IMHO) not just once, but twice.  The first time is in the very first sentence of the opinion, which reads:  "After a bench trial, the trial court found appellants guilty of unlawful detainer."  Yeah, that should probably read "liable" rather than "guilty."  Maybe it's a little bit confusing because of the whole "unlawful" part of "unlawful detainer," but still, it's a civil case, not a criminal one, so we don't find people "guilty" or not guilty.  Ditto for the second time, later in the opinion, in which he says:  "A tenant of real property is guilty of unlawful detainer. . . ." and then lists the elements.

It's a style thing, of course, so to each their own.  If you want to use "guilty" in a civil case, be my guest.  And if your background is in criminal law, I get it:  that's the term with which you're probably the most familiar.

But, for me, nah.  Delete the whole "guilty" verbiage in civil cases.

POSTSCRIPT - Several readers with far more knowledge than me in landlord-tenant law wrote to say that practitioners in the area -- and the underlying statutory scheme itself -- expressly use the term "guilt" in the unlawful detainer context; for example, in CCP 1161.  There seems like a fairly broad holdover in this arena from the old feudal days; e.g., we still call 'em "landlords".  Good to know; you learn something every day!  Personally, I still might move on from this verbiage and adopt the more modern "liable" way of saying things, but as I said, to each their own.

Tuesday, October 19, 2021

In re Stevens (9th Cir. - Oct. 19, 2021)

I have only one question about this Ninth Circuit opinion from this morning.  My query doesn't have anything at all to do with the merits.

It's a totally hum-drum, super low level appeal.  Jasper Stevens and his wife, Brenda Stevens, have a house, but it gets foreclosed upon, at which point Mr. and Mrs. Stevens file a pro se lawsuit against the company that serviced their mortgage.  They also declare bankruptcy.

Nothing unusual there, right?  Happens all the time.

In their bankruptcy proceeding, Mr. and Mrs. Stevens don't list the state court litigation on the relevant bankruptcy schedules, but do list it elsewhere.  The trustee for the bankruptcy ultimately decides to settle the pro se lawsuit for $50,000, with the money going to the estate -- and hence to the creditors of Mr. and Mrs. Stevens.  (I'm getting the $50,000 figure, by the way, from the briefs; it isn't mentioned in the actual opinion.)

Mr. and Mrs. Stevens appeal -- to the Bankruptcy Appellate Panel, and then to the Ninth Circuit -- claiming that the lawsuit (and hence money) belongs to them, not the estate, because the trustee had "abandoned" this property because he knew about it and it was listed on other forms, even though the litigation wasn't listed on the proper schedule.  Both the BAP and the Ninth Circuit disagree, and affirm the bankruptcy court's decision.

So a $50,000 dispute, easily and simply affirmed.  Nothing crazy there.

Moreover, the dispute is simply about who owns a pro se complaint that's almost certainly going nowhere and that, even if it were worth anything, only requests six figures dripping wet.  This is not a high-stakes litigation.  Sure, Mr. and Mrs. Stevens think it's worth it; it's their bankruptcy, and they feel like spending the time.  But that's fairly idiosyncratic.  In the scheme of things, it's not a big deal.  Nor is the underlying legal issue either complicated or, quite frankly, especially important.  Particularly in the context of a $50,000 dispute.

So here's my only question:

Why in the world is the chair of Gibson Dunn's appellate practice group (unsuccessfully) representing the Stevens?

It's not a critical pro bono case.  It's not an important litigation.  It's not a high-value dispute worth the underlying legal fees.  And Mr. and Mrs. Stevens appear to be neither rich nor influential; by all I can tell, they're just another bankrupt homeowner in Temecula who lost their house and who've filed a pro se complaint against their mortgage company.  Nothing unusual at all.

To be clear:  I'm all for big firms representing the little guy, and doing pro bono work -- if that's what this is.  But, seriously, there aren't more important cases than this one?  Or bigger fish to fry?

What gives?

Seriously:  I would love to live in a world in which everyone had such high-quality, sophisticated legal representation -- for free, no less -- that the only pro bono or other pickings left for great lawyers were pro se bankruptcy mortgage litigations like this one.  But I'm pretty darn sure that's not where the actual world's at these days.  And no way the underlying case merits actually paying for such high-priced legal talent.

So I have no idea what these lawyers are doing on this case.  Seriously.

P.S. - Gibson Dunn's opening brief in this appeal begins with a bold, extremely self-confident statement:  "This case involves one of the clearest instances of abandonment on an asset by a bankruptcy trustee that this Court will ever see."

Apparently not.

Monday, October 18, 2021

People v. Smith (Cal. Ct. App. - Oct. 14, 2021)

Sometimes you read opinions in the Court of Appeal and just think:  "Man, I'm so, so glad that's not me."  Sure, we've all got problems.  Maybe your job's not all that fun.  Maybe it'd be more awesome if your kids listened to you a bit more on occasion.  Whatever.

But at least this isn't your life, right?

Anne Smith has a child, Linde.  Linde has a problem with, inter alia, depression.  So even though Linde is an adult, at some point, she moves back in with her mother.  Like any parent would, Anne gets concerned when she realizes that Linde is sleeping like 18 hours a day.  That's not right.  Worried, Anne calls Linde's therapist.  Anne also mentions that Linde seems interested in hoarding, especially as regards clothes.

In short, Anne's worried about her child.  Totally appropriate, totally normal.

Here's what happens next.  (To be clear:  Anne is the mother, and "Smith" is the daughter, Linde):

"The next afternoon, Smith called 9-1-1 and told the operator that she had killed her mother. Smith told the operator, “We had a terrible fight, and I killed her with a hammer.” After Smith told the operator that the killing had taken place the prior day, the operator asked Smith why she had waited so long to call 9-1-1. Smith responded, “I just freaked out, and I was just trying to, I don’t know, I was trying to sleep and pretend it didn’t happen.” When asked by the operator what the argument was about, Smith said that her mother was “gonna give all my clothes away.” . . .

When police arrived, they found Anne’s body in the living room. There was a hammer close to her body. Portions of Anne’s skull were on the ground, eight to ten feet from her body, and her brain matter was exposed in the areas where the skull was missing. Anne suffered eight lacerations in the area above her left ear and behind her forehead, as well as extensive skull fractures and injuries to the brain. . . . In addition to fatal head injuries, Anne had a number of defensive injuries consisting of lacerations and contusions on both forearms and on one of her hands, as well as fractures to her left wrist and forearm. Smith suffered no physical injuries. 

Shortly after her arrest, while in a patrol car, Smith told a detective at the scene, “I killed my mom.”"

Yikes.

Imagine going out this way; at the hands of your own daughter, and in a brutal fashion, no less.

Not good.

Wednesday, October 13, 2021

People v. Contreras (Cal. Ct. App. - Oct. 13, 2021)

I'm glad I wasn't on this jury.

The victim (J.) testified to a classic rape situation.  Here's the basic statement of facts from the opinion:

"On October 11, 2014, J., a woman, went to a wedding and drank alcohol. After the wedding, she asked her best friend, Kacie, to pick her up and go to a bar. Kacie instead invited J. to Kacie’s friend Brittany’s house in the Madera Ranchos. J. accepted the invitation and Kacie picked her up.

Brittany lived with Contreras, her fiancĂ©. When J. and Kacie arrived, they began taking shots of liquor with Brittany and Contreras. Contreras, Brittany, and Kacie had about four or five shots and J. had about two. About 30 to 45 minutes later, J. went to the bathroom and vomited, and Brittany and Kacie went into the bathroom to help her. Brittany went to her and Contreras’s bedroom and got a shirt and sweatpants for J. to change into, J. changed into the new clothes, and J. got into Brittany and Contreras’s bed.

Brittany, Kacie, and Contreras sat on the back patio and Brittany fell asleep. Contreras told Kacie something like, “I’m going to get that bitch out of my bed,” and went into the house. 

J. testified at trial that the next thing she remembered after falling asleep was someone getting into bed with her. She rolled away from the person onto her side, but then felt someone grab her hand and place it on an exposed penis. J. opened her eyes and saw it was Contreras. J. said “no” and tried pulling her hand away. Contreras placed his free hand on the front of J.’s neck. J. described the pressure on her throat as a light clasping that nevertheless felt “awful” and made her freeze from fear. With one hand on her throat, Contreras placed his other hand on her abdomen and pulled her body toward him. J. again said “no.” With his body on top of hers, Contreras inserted his penis into J.’s vagina. J. told him to stop. After several minutes of thrusting, Contreras removed his penis and forced J.’s head down toward his penis and inserted it into her mouth. J.  was crying as Contreras pushed her head toward his penis. She did not remember how long his penis was in her mouth, but said she was scared. Contreras took his penis out of her mouth when Kacie entered the room and yelled, “What the fuck?” Contreras did not ejaculate. . . .

J. eventually got out of the bed and ran out of the house wearing only the t-shirt Brittany had given her; she was not wearing pants. Kacie followed her into the street. J. was crying and saying, “He made me. He made me. I didn’t want to. He made me.” Kacie put J. in a bush and went in the house to get J.’s things and to call them a ride. J. was gone when Kacie returned. J. walked to her mother’s house two miles away. She told her mother what happened and her mother took her to the emergency room, and law enforcement was contacted."

Well, that seems fairly straightforward, no?  Totally rape.

Though there's one paragraph in the middle of there; the one with the ellipsis (in my quote).  Here's that one:

"Kacie testified that after Contreras left the patio and went inside, she remained on the patio waiting for Contreras to return until she started to hear both J. and Contreras moaning; the moaning sounded pleasurable. She went into the house, opened the bedroom door and yelled, “What the fuck are you guys doing?” Contreras said, “Fuck,” and went to the bathroom. J. hid under the covers and would not let them go as Kacie tried to pull them off of her."

The opinion doesn't say it, but you can fairly easily intuit what Mr. Contreras' defense was; that it was consensual (hence the "pleasurable" moaning by J.), that J. was then caught by the friend (Kacie) when she opened the door with J. and Contreras (who was her friend's fiance), and then J. immediately made up the nonconsent claim to avoid exposure for sleeping with the fiance.

At the same time, you can easily imagine J.'s response; no, that's not what happened, J. wasn't moaning, and the friend (Kacie) was either mistaken or covering up for her friend's fiance.

I wasn't there.  Nor was I on the jury.  So what do I know about who's right?

The jury ends up acquitting Contreras on the rape and forcible oral copulation charge.  But it convicts him on simple battery (a lesser included offense of rape).

Was this a compromise verdict?  Again, I wasn't there, I don't know.  What I do know is that it's a tough case, and it's one where there are very serious dangers of doing injustice.  Either way.  Including but not limited to the injustice of a mere compromise.

Anyway, Contreras gets put on probation.  Formal probation (supervised), but no prison.  Plus has to register as a sex offender.

That's what happens.  Right or wrong.

Monday, October 11, 2021

People v. Flores (Cal. Ct. App. - Oct. 8, 2021)

I'm fairly confident that what Justice Robie says in this opinion about both the applicable law and the existence of prejudice accurately states the existing doctrine.

But should it really be this way?

It's a murder case, and the various charges are first degree murder, second degree murder, and voluntary manslaughter.  All the jurors agree it's not first degree murder, but they're split on whether it's second degree or merely voluntary manslaughter.  Eight think it's second degree, but four think it's only voluntary manslaughter.  They deliberate quite a bit, but still can't resolve the split.

So they talk about prospective punishment, which they're definitely not supposed to do.  The murder jurors obviously want the guy to spend a lot of time in prison, whereas the manslaughter jurors don't think that's right.  Regardless, all the jurors don't want the guy to walk; they all think he's committed a serious crime (e.g., wrongfully killing someone).  They're worried that, maybe, if they hang, the guy will go free.

So the eight jurors compromise, and even though they think he's guilty of a more serious crime, they vote to acquit the guy on that count and convict him merely of voluntary manslaughter.  All the jurors agree.

The Court of Appeal reverses the conviction and remands for a new trial on the manslaughter count.

Did the jury do wrong?  Clearly.  They're just supposed to find the facts, not consider punishment.

Did that error affect the verdict?  Of course it did.  Talking about punishment caused some jurors to change their minds.

Hence why Justice Robie reverses the conviction.

But here's the rub:  Is that really prejudice?  Did it really harm the defendant?

Sure, the (improper) consideration of punishment changed some of the juror's minds, but it did so in a way that -- at least facially -- only benefited the defendant:  it got them off of voting to convict the guy of a more serious offense, second degree murder.  That's a benefit, not a harm.

I understand that it simultaneously got them to vote guilty of voluntary manslaughter.  But they were already on board for that.  They already thought he was guilty of at least that offense; their only dispute is that they wanted him convicted of more.  Not a single one of 'em was voting to acquit on voluntary manslaughter; with respect to that charge -- the charge for which he was ultimately convicted -- the discussion of punishment didn't affect their decision one iota.  It simply got 'em to acquit on a different offense.

That's not prejudice.  To the defendant, anyway.

Now, on some level, you might argue there's "prejudice" to the defendant because the compromise meant that the jury didn't hang, and the defendant might arguably prefer a hung jury to a conviction on voluntary manslaughter.  But three things.

First, and least significantly, I'm not even sure the predicate is actually true.  A totally hung jury would mean that the guy could potentially be convicted in a future trial of all of the charges, including but not limited to second degree murder.  Seems like a defendant might well not want to take that risk.

Second, the alternative isn't really a hung jury on everything.  The jury unanimously agrees, after all, that the defendant was guilty of (at least) voluntary manslaughter; they just disagree as to whether it's murder.  So they can definitely, beyond a shadow of doubt, (1) unanimously convict on the voluntary manslaughter charge, and (2) declare themselves hung on the second degree murder count.  That puts the defendant in much worse position than what the jury did here -- i.e., convict on manslaughter but acquit on second degree murder -- because the prosecution can presumably retry the guy on second degree murder if it wants with the manslaughter conviction already in hand.  So what the jury did here doesn't exactly count as "prejudice" at all from that perspective; indeed, it's a fair piece better than the alternative.

Finally, doctrinally, I'm not at all confident that a compromise like this counts as "prejudice" any more than other types of split verdict that we're totally comfortable with.  Take flatly inconsistent verdicts, for example.  Let's say a jury decides that a defendant is guilty of Crime X but acquits on Crime Y, even though Crime Y is a foundational predicate of Crime X; i.e., both can't possibly be true.  Is what the jury did a compromise verdict?  Maybe; indeed, lots of times, we're pretty confident it is.  Can the jury possibly have properly followed the law?  Nope.  They definitely did something wrong, because no way can you acquit on the one but convict on the other.  But do we reverse the resulting conviction?  Nope.  We do not.  We say that, yeah, the jury must have reached a middle ground, but that result benefits the defendant a little bit (the acquittal on Y) while hurting him a little (the conviction on X).  No prejudice, so no reversal.

Same reasoning -- or at least result -- here, right?

Indeed, arguably, there's even less reason to find prejudice in the present case.  Mr. Flores definitely got a benefit since he obtains an acquittal on second degree murder even though eight jurors though he was guilty.  And arguably he didn't even lose anything because he was only convicted of an offense that all twelve jurors thought he had, indeed, committed.

Regardless, even if you count that last thing as prejudice, it's still a balance both ways; some benefit, some loss.  We don't reverse for inconsistent verdicts that do the same thing.  Why here.

(I'm not necessarily saying that what we do with inconsistent verdicts makes sense, or is good law.  But the point is that this is the law, and if we do it there, why not here?)

One final point.  When you look at the underlying impropriety, it's hard to see that the prejudice flows in the direction that Justice Robie assumes.  Sure, they improperly talked about punishment, but they did so in order to convince the second degree murder folks to acquit on that defense -- hardly something about which the defendant could complain.

To prove the point, let's imagine a slightly different fact pattern, in which (as here) eight jurors want to convict of second degree murder, four jurors (as here) want to convict of voluntary manslaighter, and (as here) the jury improperly talks about punishment in its deliberation.  The only variation is that in this hypothetical, the jurors talk about punishment -- again, improperly -- because the four jurors in favor of the lesser offense say that the punishment for second degree murder would be too severe, and on that basis convince the eight to convict only on voluntary manslaughter.

Does that impropriety prejudice the defendant?  Of course not, it got 'em to acquit, not convict, even though the ultimate output is indeed a conviction on a particular charge (voluntary manslaughter).  It seems inconceivable that we'd reverse that conviction by finding prejudice to the defendant.

Same here, no?

It's not that I disagree that prejudice is presumed.  It simply seems like it's rebutted in situations in which, as here, everyone agrees that the impropriety resulted in (1) an acquittal on an offense that lots of jurors thought the guy was guilty of, and (2) a conviction in which all the jurors already thought the guy was guilty (and a portion of whom were merely hoping to convict on a greater offense).

The case that Justice Robie cites for prejudice in this context is People v. Hem, which indeed says that a retrial is better for the defendant than a conviction on a less serious offense.  But in that case, unlike the present one, it was unclear whether all the jurors had already agreed on the lesser offense; there, the Court of Appeal reversed precisely because the trial judge didn't inquire at all into the nature of the deliberations.  Here, by contrast, we know full well what happened; all the jurors already agreed on the lesser, and were only disputing (and compromised) the greater.  That seems profoundly different to me.

The inequity here seems particularly striking due to the practical effects of the Court of Appeal's opinion.  It permits the defendant to obtain the benefit of the jury's compromise -- i.e., its compromise acquittal on the second-degree murder charge (because there's now a Double Jeopardy bar to a retrial on that count) -- whereas not binding defendant to the detriment of that same compromise (i.e., conviction on the lesser count).  With inconsistent verdicts, the law finds that result entirely untenable.  Yet that's precisely what the Court of Appeal's holding here ensconces into law.

It's not that I like compromise verdicts any more than you do, or that I want juries to consider the degree of punishment in deciding whether someone's guilty.  Since that's not the law we currently have, and I get it, so I'm on board for presuming prejudice and thinking carefully about reversing convictions when the jury's done something wrong.

I'm just not sure that these principles really apply in the present case.  Even if that's indeed what the law says.

Thursday, October 07, 2021

Forest Lawn Memorial Park v. Ramirez (Cal. Ct. App. - Oct. 7, 2021)

I hope that this opinion gets depublished.

There's an automobile accident and someone's injured, and the injured party sues the other driver and his employer (Forest Lawn).  The question is whether the defendant driver was driving for his employer at the time of the accident; if he was, the employer might be liable, if not, no liability.  The employer moves for summary judgment with declarations that the driver was simply driving to work in his own car and had no job responsibilities that involved driving; if that's true, no vicarious liability.

Plaintiff responds with a declaration of a third party witness that says that's not true; that she saw the driver pick up flowers on multiple occasions for Forest Lawn.  As described by the Court of Appeal, here's what the declaration says:

"Scott stated that she was an employee of “Jensen’s Florists” in Palm Springs, where she had worked for many years. She stated that between February and March 2017, she witnessed “an employee of Forest Lawn, named Joshua Brown[,] that came into Jensen’s Florists on numerous occasions with his car to pick up flowers on behalf of Forest Lawn.” She stated that this was done during work hours. She signed under penalty of perjury."

On that basis, the trial court denies summary judgment.  Disputed issue; genuine issue of material fact.

Right?  Any problem with that?

Nope.  Not with me, anyway.

Are you at all concerned that the declaration of the witness isn't admissible?  Does it show personal knowledge of the witness?

Of course it does.  She says she worked at the florist, had worked there for many years, and personally saw the driver (Joshua Brown) pick up flowers on behalf of Forest Lawn.  You can't get more basic and fundamental than that.  I've filed dozens of declarations over the years that say basically the same thing.  So, I suspect, have you.

But the Court of Appeal holds that the declaration is flatly inadmissible, on the theory that it lacks foundation.  Here's Justice Raphael's reasoning:

"The stated basis for this statement was only that Scott was an “employee of Jensen’s Florists”; the declaration provided no other reason to establish how she might know the information to which she was testifying. In many contexts, a witness’s assertion that she witnessed something readily provides adequate foundation for her testimony. Here, however, for Scott to have personal knowledge of the matter she asserted, she would have to be in a position at a florist to know and remember for three-and-a-half years (a) the name of a person picking up flowers, (b) the company that person worked for, and (c) that the person arrived in a car during work hours. Were Scott testifying at trial, the bare assertion in her declaration would likely be inadequate to overcome an objection for lack of foundation; a court would demand more testimony from a live witness as to how she knew and recalled the information."

These are all good points.  But they're the stuff of impeachment, not foundation.  Sure, it's three and a half years earlier, and one could reasonably wonder how she'd remember a guy's name for so long.  But that's not impossible.  She says she remembers.  That's enough.  Similarly, yeah, I do wonder how she knew (and remembered) the customer's name or the company he worked for.  But in a declaration, I'm not required to spell out in exhaustive detail every background circumstance of the events to which I'm testifying.  The witness said that she personally saw the guy and had personal knowledge of his name and his company.  You can cross-examine the witness to try to show that's not true.  But to say that the declaration lacks foundation just seems way too strong.  If I say "I saw James Kirk commit the murder because I was there and I saw it and it was him," that's fine.  I don't have to spell out how I'm sure that it was James Kirk.  I said it was him.  I said I had personal knowledge of that.  At the evidentiary stage, I think that's sufficient.

The point about "how do you know it was work hours" seems even less persuasive.  How does the witness know that it was during work hours; well, you can ask her that if you want, but here's likely how:  because everyone pretty much knows what that means.  It means he picked up the flowers like between 9 to 5.  Can you ask her to be more specific?  Sure.  Can you ask her if she remembers the exact time?  Yeah, if you want.  Can you says:  "Well, sure, you think those are work hours, but do you know whether or not Joshua Brown is assigned to work the night shift?"  Sure, give it a shot.  But to say that the evidence is flatly inadmissible again seems to require way more rock-solid foundation and demonstrable truth than we usually -- or rightly -- require.

Now, in this particular case, I totally understand why Justice Raphael wants to come out this way.  In the present lawsuit, after the trial court denies summary judgment based on this declaration, defendant deposed this witness, at which point she totally recanted pretty much every single thing she said in the declaration, admitting that she has zero idea whether anything she said was true and essentially saying that she signed a declaration without reading or even understanding it because plaintiff's lawyer was badgering her and she just wanted to get him out of her face (and workplace).

Okay.  That's super good impeachment stuff.  I'm pretty confident that if that's the only evidence on the liability side, a jury will find for the defendant.  I certainly would.  So it seems unjust to waste money on the case and let it go to trial.  Just bounce it now.  (The Court of Appeal also seems deeply concerned about the attorney's conduct, saying in a footnote:  "We, too, are concerned by the behavior Scott described. For present purposes, however, we need not decide whether [attorney] Basseri in fact violated the Rules of Professional Conduct.")

But while perhaps equitable, that's not what we do.  If some evidence says X and some says Y, we let a jury decide.  We don't decide for 'em.  Even if we're super convinced that X is wrong and Y is right.

One final doctrinal point.  If you really want to reach the (equitable) result embraced by the Court of Appeal, I personally think the D’Amico route would be the preferable way to go.  (Or at least would have much fewer untoward consequences than the Court of Appeal's "let's start having trial courts refuse to admit a ton of sworn declarations because we're super restrictive on what possibly counts as 'personal knowledge'" principle.)  The California Supreme Court said in D’Amico that you can't create a genuine issue of material fact by submitting a declaration that contracts your declaration.  That rule makes eminent sense; we have the same principle on the federal side as well.  It seems to me that if you applied that rule here, you'd have a possible basis for rejecting the declaration.  Admittedly, usually, the way these things go is that you have a deposition first and then a subsequent declaration -- which we reject -- that contradicts that sworn testimony, whereas here, the deposition came second.  But I'm not sure the order matters.  The principle is the same.

But today's opinion says that this rule only applies to declarations by a party, not a third-party witness.  The federal courts, though, go the other way, as have several other Court of Appeal opinions (as Justice Raphael admits).  But the panel here says that it "disagrees" with those prior opinions, and instead says that the California Supreme Court's D’Amico rule "in our view, [] applies to deposition and declaration statements by only a party to a case" and "does not apply to third-party witnesses like Scott."  I get the reasoning there.  But creating that appellate split seems yet another downside of an opinion that likely will create a ton of confusion, litigation and inefficiency as lower courts struggle to apply the restrictive "you gotta really, really, establish every detail of personal knowledge in your declarations" principal of today's decision.

Am I okay with the ultimate result?  Sure.  Ramirez definitely deserves to lose.  But as they say, and as a reminder:

Bad cases make bad law.

So keep the result but depublish the case.

Wednesday, October 06, 2021

in re Ari S. (Cal. Ct. App. - Oct. 6, 2021)

Okay, well, I can certainly tell what today's theme is going to be in the California Court of Appeal.  Here's the first opinion published this afternoon (right after the one I mentioned earlier today):

"The mother has three adoptive children: Serenity (born in 1993), Genesis (born in approximately 2002), and Ari (born in 2013). Ari is the only child at issue in this case. Serenity is Ari’s biological parent. The mother adopted Serenity in Nevada through an adult adoption when Serenity was pregnant with Ari. When Ari was six months old, the mother adopted Ari in Nevada. 

The mother, Ari, and Genesis traveled and lived in a van. The timeline of the family’s whereabouts is indistinct. Most record dates come from the family’s involvement with child protective services agencies in different locations. . . . The family was in Montana in the beginning of 2019 when Montana’s child protective services agency removed Ari and Genesis from the mother’s care. We have few details about this removal. A Montana social worker spoke with a Washington state social worker, who told the Department this removal was because the mother neglected Ari and physically abused Genesis. . . .

In spring 2020, the three stayed in Washington state with Ari’s godmother, Linda K., for a month and a half. During that stay, the mother wanted to board up Linda K.’s windows and turn off the utilities because the mother believed “Christ was going to send fire from heaven in the form of a cross.” The mother predicted this would happen on May 27, 2020. . . .

The mother has had long-standing mental health issues that recently have become more severe. The mother has delusions. She believes King Louis V is her father and Donald Trump, Michelle Obama, and Queen Elizabeth communicate with her through satellites. She thinks the world is going to end and she told this to Ari, which frightened him.

Ari said the mother smokes marijuana “a lot.” She has smoked in the van with Ari inside. “Sometimes, I can’t handle the smoke. I hold my breath.” “Sometimes, I suck that in and breathe it in when my mom breathes it out.”

Genesis said the mother once closed her eyes and drove the van into a ditch with Ari inside. The mother said someone was talking to her through a satellite and was controlling her hands.

Genesis and Ari did not attend school and the mother lied about homeschooling them. The mother physically abused Genesis and sometimes spanked Ari.

On June 4, 2020, Genesis reported the mother to police in Franklin, California because the mother said Ari was “being raped by a Saudi Arabian satellite.”

As of June 17, 2020, the family was in San Bernardino County. Someone referred them to that county’s child protective services agency alleging that the mother punched Genesis, that the mother said someone was controlling the mother’s mind, and that the mother did not feed Ari. The county deemed this referral inconclusive: it could not find the family.

The mother, representing herself, filed a lawsuit in federal district court in California on June 25, 2020. She listed a California address in the filings. The complaint says Donald Trump made the mother the “current elected citizen president” and the mother’s grandmother is Queen Elizabeth. One page is styled as a handwritten declaration from Ari. It says, “Ari 6 years old American Citizen First Military Survivor on Soil” and, “My name is Ari. So um judge okay so the people here are doing bad things to my mommy.”"

Not blithesome, eh?  At all.

Michael G. v. Superior Court (Cal. Ct. App. - Oct. 6, 2021)

There's only one published opinion from the California appellate courts today (thus far, anyway), but it's one that definitely makes you feel sympathetic towards the kid:

"A.G. left home in the fall of 2019 due to Father’s escalating mental health issues. According to A.G., Father heard voices and had delusions of persecution by demons, witches, and the government; he also yelled, threw things, and punched the walls in their home. At the time, A.G. was not in contact with Mother, who lives in North Carolina, and whose background includes mental health issues, psychiatric hospitalization, alcohol abuse, attempted suicide, and a criminal history.

The juvenile court found A.G.’s reports were credible and concluded Father’s mental health issues, coupled with Mother’s mental health issues, criminal history, and failure to maintain a relationship with the child, put the child at risk of suffering serious physical harm. Based on these findings, the court assumed jurisdiction over the child in January 2020, removed her from her parents’ custody, ordered both parents to undergo general counseling and other reunification services, and ordered an Evidence Code section 730 evaluation of Father.

During the six-month review period, Father refused to sign his case plan and the therapy referral, or to participate in the section 730 evaluation. Mother made even less progress and was terminated from counseling due to non-attendance."

Stay tough, A.G. 

Monday, October 04, 2021

People v. North River Ins. Co. (Cal. Ct. App. - Oct. 4, 2021)

Justice Perluss buries the lede in this opinion.  In a footnote, no less.

It's yet another bail forfeiture case.  Most of the analysis in the opinion consists of strings of quotations and citations, which makes it a bit difficult -- or at least off-putting -- to read.  But the basic scoop is that the defendant was charged with a crime, a bail bonding company posted his bail, the defendant skipped town, the guy was ultimately arrested and incarcerated in another state, and the LAPD ultimately went to Nebraska and extradited the guy and brought him back to Los Angeles.  Since the guy was returned in time, the trial court vacated the prior forfeiture of the bond, but charged the bail company the costs of returning the defendant to California, which were over $6,000.  (This amount seems super high to me, but perhaps the officers who went and picked up the offender ate and drove/flew quite well.)

But the Court of Appeal reverses.  The rule is that if the defendant eventually shows up on time, then the trial court has to vacate the bail forfeiture, which left the trial court without jurisdiction to make the order for reimbursement of extradition costs.  There you have it.

The final footnote, however, says that the trial court could have conditioned the vacatur of the forfeiture on payment of the extradition costs.  Which might be something to put in the first paragraph.  If only so everyone relevant makes sure to read it.

But at least we now know the rule.

Assuming you read footnotes.

Wednesday, September 29, 2021

Missakian v. Amusement Industry (Cal. Ct. App. - Sept. 29, 2021)

You might be an in-house counsel, but if you want to get paid a contingency fee by your employer, just like outside attorneys, you need to get it in writing:  otherwise it's unenforceable.

Justice Rubin isn't entirely with the breadth of the majority opinion, and might allow some in-house counsel to enforce oral contingency fee agreements in certain settings.  But at least after today's opinion, in-house counsel are forewarned:

Get it in writing.

Tuesday, September 28, 2021

People v. Wise (Cal. Ct. App. - Sept. 28, 2021)

Dating is not easy.  Especially if you're a woman.  Among other things, you might run into someone like Gregory Wise.

It's pretty chilling, even though (thankfully!) the victim wasn't ever physically assaulted.  It started innocently enough, like a million (or more) online dates:  "Defendant met R.F. through a dating website in 2011. After a couple of casual dates involving walking around public parks, she relayed to defendant she was not interested in pursuing the relationship."

Fine.  Didn't work out.  Time to move on.

But Mr. Wise had other plans.

"Defendant still continued to text and call her over 900 times for the following three years, even though R.F. only responded to tell him to stop and attempted to pretend she had changed her number. In 2015, defendant resorted to threatening to kill himself if she did not reciprocate his feelings towards her. Defendant had also changed his profile on the dating website to say, “[R.F.] you are the only one for me,” call R.F. his “soulmate,” and that: “She just confuzzled [sic] and continues to play games with me as she had from the very beginning. . . . I been ‘stalkering’ her lately. Whatever that word means that concept means. She so fraidy [sic] of me she won’t even dare respond so I guesses [sic] I will have to confront her.” Around discovering defendant’s profile changes, R.F. also found a video defendant uploaded showing him shooting guns while running through a forest in a military fashion."

Not good.  You could easily see why the victim might be freaked out.

But it gets worse.

"On June 22, 2015, defendant was arrested after a light rail rider called 911 reporting defendant had a gun in his pocket on the train. Officers found on defendant a map to R.F.’s house and a document titled “Plan Trackering [sic]” that discussed placing a tracking device on a vehicle. Defendant also had a document with R.F.’s license plate number and a description of her vehicle."

This makes it an easy stalking case, right?  There's basically a zero percent chance the jury's going to acquit.  So just introduce the basic evidence, rest, and declare victory.

But what makes the case even weirder (to me) is that the prosecutor goes ahead and introduces other (freaky) evidence as well:

"Before trial, the prosecutor sought admission of the photographs recovered from defendant’s devices. The first set of pictures were nearly 300 screenshots of a computer desktop with various images of R.F. next to other images including those of legs and feet of other women and monster-like cartoons eating women. These screenshots were consistent with vorarephilia, or vore pornography, which is characterized by a neurotic desire to consume or be consumed by another person or creature. Defendant also labeled the screenshots with the description of what he was doing, often sexually, when he took the screenshot, such as “1-1-13 0915 knees right sex stared into her eyes snow white.bmp” and “6-6-12 2404 focusing on her face of her in the costume on kn.bmp.” 

The prosecutor described these photos as getting “to the meat and potatoes of the defendant’s intent and obsession with the victim.” Defense counsel argued the photos were private and not used in any way to harass or annoy. The trial court found these pictures admissible without explaining its reasoning.

The second set were photographs surreptitiously taken of 14 other women totaling over 350 pictures. Most of these pictures were taken in parking lots while the women were getting in or out of their cars, or while they walked down the sidewalk, and many focused on their legs. The prosecutor argued these were admissible under Evidence Code sections 1101, subdivision (b) and 1109. The trial court permitted these photos because they were “relevant to his intent in the stalking charge.”

To me, that just seems wrong.  Maybe they're marginally relevant; and, to be clear, I'm saying "maybe" just to be safe.  But their prejudice clearly outweighs whatever their probative value might be.  The goal is to label Mr. Wise as a freak for loving monsters eating women.  Which, sure, yeah, he definitely is, but that doesn't really go to the whole "crime" part of what we're trying to get at here.

Nonetheless, the Court of Appeal affirms.  Personally, I'd have probably been fine if it had just said "at worst, harmless error, since the evidence was pretty darn clear on the whole stalking thing."  But, nope, the justices conclude that the various photographs were relevant, admissible, and non-prejudicial (or at least that their probative value outweighed any prejudice).  Seems way too aggressive to me, but what do I know?

Anyway, the point is this:  Online dating isn't always perfect.  Or even close.

Thursday, September 23, 2021

Kahn v. Price (Cal. Ct. App. - Sept. 22, 2021)

It's a fight between two neighbors, both of whom live in fancy San Francisco homes.  One of 'em has some amazing views of the skyline, the Bay, the Golden Gate bridge, etc.  But then a "voluntary" Monterey pine seedling starts to grow -- rapidly -- on the neighbor's property.  Eventually, the tree starts blocking a ton of the neighbor's great view, so after a lengthy administrative process, the neighbor sues.

The neighbor with the blocked view prevails.  The tree's ordered to come down.  The Court of Appeal affirms.

All that's marginally interesting, but not why I mention the case.

During the litigation, the defendant neighbor (and counsel) discover that the plaintiff took out a big reverse mortgage on their home, and that this mortgage required that the San Francisco place be her primary residence.  It turned out, however, that the plaintiff had filed a declaration in (tax-free) Florida that Florida was her primary residence, and that she moved to Florida in 2008 and had no intention to return to California.

Which is pretty much irrelevant to the lawsuit, but which nonetheless does make the plaintiff look bad.

So defendant files a motion to "dismiss" the lawsuit on an extraordinarily dubious claim that the plaintiff wasn't the "owner" of the property (even though she clearly was) because her fraud might perhaps make the bank foreclose.  And then, just-so-coincidentally, counsel for defendant calls and writes the loan company, gives 'em details, and includes the pleading it files -- which prompts the bank to show up at the hearing and initiate proceedings to terminate the loan.

The trial court ain't having any of that.  Not only does it deny the motion, but it finds that the efforts to queer the mortgage were bad faith litigation tactics, and imposes bad faith sanctions of $47,345.30 jointly and severally on defendant and "their trial counsel William S. Weisberg and the law firm of Weisberg & Miller."  (Parenthetically, Mr. Weisberg's firm website proclaims:  "Prior to cofounding Weisberg & Miller, William Weisberg worked as a senior associate attorney at a major insurance defense law firm in San Francisco. . . . Mr. Weisberg maintains a strong reputation among his clients and adversaries as an aggressive litigator. . . ."  True that, I guess.)

The Court of Appeal not only affirms, but also drops a footnote:  "We assume the trial court and attorney Weisberg have already reported the judicially imposed sanctions to the State Bar of California. (Bus. & Prof. Code, §§ 6068, subd. (o)(3) [attorney self-reporting duties]; 6086.7, subd. (a)(3) [court reporting duties].)"

Ouch.

Wednesday, September 22, 2021

Li v. Garland (9th Cir. - Sept. 21, 2021)

When I saw this opinion, my first thought was:  "It's an immigration case, and it's authored by Judge Wallace, so I already know how it turns out."  As I read further, yep, I was indeed not surprised by the ultimate result.

But my second thought was, honestly:  "I know I'm old, but Judge Wallace has to be really getting up there, no?  Great for him to be still cranking out opinions."

Judge Wallace was a long-timer even when I was clerking on the Ninth Circuit, way back in the day; indeed, he was the Chief Judge back then.  To give you some sense of how long he's been on the Ninth Circuit, he was appointed by President Nixon.  Whoa.  Blast from the past.

He's 92 years young, and still writing opinions.  Not a plethora, mind you; as far as I can tell, he's only written a half dozen in 2021.  Still.  For me, I'd definitely take that level of production myself at age 92, thank you very much.

So kudos to Judge Wallace.

Who, by the way, is not the oldest judge on the Ninth Circuit.  That award belongs to Judge Goodwin, who's a spry 98.  But I think that Judge Goodwin has only authored two opinions in the past half dozen years; one back in 2016, and another back in 2015 (from a case argued in 2012).  So Judge Wallace likely wins the award for continuing on-the-bench performance.

Though Judge Goodwin still wins first past the post.

 


Tuesday, September 21, 2021

U.S. v. Wilson (9th Cir. - Sept. 21, 2021)

Today I learned that if you upload a kiddie porn image to your gmail account -- or at least one that Google has seen before -- they immediately report that fact to the police.  (More accurately, as required by federal law, Google reports it to the National Center for Missing and Exploited Children, which in turn promptly reports it to the police.)

That's yet another reason not to email child pornography.  As if anyone should need another.

It's a totally automated process, which means that no one at Google actually looks at the files; they simply compare the "hashtags" of known kiddie porn to files they've already discovered.  Which means, I guess, that if you're sharing newly-created child pornography, you're "safe."  (Though you're still a sick bastard.)

I didn't realize that Google's surveillance system was that strong, but upon learning it, I guess I'm not surprised.  It's Google, after all.

Here was the most surprising thing I learned, however:  According to the opinion, "there were 18.4 million CyberTips in 2018."

Seriously?!  18 million of these things?!  That's . . . a lot.

P.S. - There was a portion of Judge Berzon's opinion that dealt with issue preclusion as applied in criminal proceedings; this issue arose because the defendant here, Mr. Wilson, appears to have also been charged in a state prosecution, in addition to the current federal charge.  Here's how the final paragraph of footnote 5 of Judge Berzon's opinion reads:  

"We need not definitively resolve the preclusion question as it relates to a motion to suppress, here, as the government has not asserted collateral estoppel, so the argument is waived. Harbeson v. Parke Davis, Inc., 746 F.2d 517, 520 (9th Cir. 1984) (“The United States was unaware that Mr. Wilson had raised the same issue in his state appeal until the letter filed in this case by [defense counsel] on October 16, 2020.”)."

I'm pretty sure the quote doesn't belong inside the parenthetical.  Unless, by some method of time travel of which I'm unaware, the Harbeson case in 1984 was able to anticipate a letter that involved a guy not named Harbeson that'd be sent 36 years hence.