Kelsey v. Garrett (9th Cir. - Sept. 21, 2023)

There's probably no one more bummed that Judge Watford decided to make more money than Zachary Kelsey.

At a teenage bonfire, Mr. Kelsey got into a fight with another participant and hit the guy in the face a couple of times. The guy died. Kelsey is subsequently tried and convicted of second degree murder at a trial in which his lawyer made no closing argument and didn't consult a forensic pathologist to figure out why the victim died. Kelsey was sentenced to 10 to 25 years in prison, but back in May, the Ninth Circuit reversed the district court's denial of Kelsey's habeas petition on grounds of ineffective assistance of counsel.

So at that point, it was a good 2023 for Kelsey. A chance to maybe get out of prison for a fight that went horribly wrong.

Judge Watford was on the panel that decided Kelsey's case. He'd been on the Ninth Circuit for a little over a decade, and decided it was time to move on. So, exactly a week after the opinion in Kelsey's case, Judge Watford resigned from the Ninth Circuit and joins Wilson Sonsini.

Thereafter, as usual, there's a petition for rehearing. Judge Friedland is drawn to replace Judge Watford. Since the original decision was a split one -- Judge Watford had joined Judge Gould's majority opinion, and Judge Graber dissented -- there's now a chance that the panel reverses its decision.

Which, today, it does. The panel withdraws the original published opinion and replaces it with an unpublished memorandum disposition that affirms the district court and keeps Mr. Kelsey in prison. Indeed, in the memorandum disposition, Judge Gould -- the original author of the opinion granting relief -- doesn't even dissent. So now it's unanimous the other way.

Undoubtedly to Mr. Kelsey's substantial chagrin.

U.S. v. Marschall (9th Cir. - Sept. 20, 2023)

This guy's selling "medicines" that obviously don't work to gullible people. So he gets criminally charged, and I have little problem with that.

Though I suspect that there are a wide, wide variety of people -- including but not limited to people and/or corporations that advertise on television -- who do the exact same thing.

He gets eight months in prison. Not a lot. Fine with me. Just stop doing it, please.

Ditto for everyone else.

Santa Paula Animal Rescue Center v. County of Los Angeles (Cal. Ct. App. - Sept. 18, 2023)

I have no idea why the County of Los Angeles is so desperate to kill dogs in its custody that a no-kill animal shelter wants to take over and keep alive. Much less why LA would want to waste money fighting a lawsuit (and appeal) in an attempt to keep a policy in place that kills dogs that don't need to die.

What whatever its motivation, it loses today's appeal. And I'm glad it does. Because unnecessary killing seems, well, kinda unnecessary.

Plus, given the underlying statute, you'd think that LA would have figured out -- correctly -- that it was likely to lose on appeal. Section 31108 of the statute says: "Except as provided in Section 17006, any stray dog that is impounded pursuant to this division shall, before the euthanasia of that animal, be released to a nonprofit, as defined in Section 501(c)(3) of the Internal Revenue Code, animal rescue or adoption organization if requested by the organization before the scheduled euthanasia of that animal." "Shall" probably means, "shall," right? So unless the exception in Section 17006 applies, it seems like LA has to not kill the dog -- i.e., give it to the no-kill shelter -- upon request. Section 17006, in turn, creates only the following exceptions: "Animals that are irremediably suffering from a serious illness or severe injury shall not be held for owner redemption or adoption. Except as provided in subdivision (b) of Section 31108 and subdivision (c) of Section 31752, newborn animals that need maternal care and have been impounded without their mothers may be euthanized without being held for owner redemption or adoption.”" But the two dogs that the approved non-profit here wanted to take over -- Gunnar and Winston -- didn't fall under that exception. They weren't ill or injured or newborns without mothers. They simply had "behavioral problems" that LA County thought meant that they wouldn't be quickly (or perhaps ever) adopted.

But, as Justice Moor rightly holds, that's irrelevant. It's not an exception under the statute. If the approved nonprofit is willing to take them, the County can't kill them. The nonprofit can try to adopt them out and take care of them in the interim. Their call, not the County's.

The trial court held otherwise, which is why (I suspect) the County thought it could win. And, maybe, there is a legitimate reason why a public entity that really cares about stray dogs would rather kill a dog than give it (upon request) to an approved no-kill animal shelter. I just can't think of any offhand.

Regardless, even if I could, that's not what the statute says. So I'd follow it. As the Court of Appeal does here.

At the same time, Justice Moor holds that the statute does not require the County to give up dogs to any nonprofit that makes a request under the statute. I'm fine with that result, but I'm fairly confident that a pure textualist would be compelled to go the other way. The full statute says: "Except as provided in Section 17006, any stray dog that is impounded pursuant to this division shall, before the euthanasia of that animal, be released to a nonprofit, as defined in Section 501(c)(3) of the Internal Revenue Code, animal rescue or adoption organization if requested by the organization before the scheduled euthanasia of that animal. The public or private shelter may enter into cooperative agreements with any animal rescue or adoption organization." That last part -- the "may" section -- nowhere qualifies the first ("shall") part, or says that the "shall" is trumped by the subsequent "may". So I agree with Justice Moor that, as a policy matter, it's kinda silly (and I don't think the Legislature's intent) were the statute to allow any nonprofit -- however abusive or whathaveyou -- a right to divert stray dogs, or to have the IRS be the only determinant of which nonprofit shelters could legitimately divert. Just because I bother to incorporate a nonprofit doesn't mean I should necessarily be entitled to grab -- as some might -- every single dog in the County that would otherwise euthanize. You gotta have space for them, food, blah blah blah.

But, to be clear, that's not the way the statute facially reads. It shall the dog "shall" be released to a nonprofit. Period. So if you're a pure textualist, seems to me like you've got to come out that way.

But I'm not, so I don't.

Garcia v. Gateway Hotel (9th Cir. - Sept. 15, 2023)

A holding by any other name would smell as sweet. But do you have to follow it?

That's the disputed issue in this morning's Ninth Circuit opinion.

Background Truth No. 1: When a prior Ninth Circuit opinion holds X, a subsequent Ninth Circuit panel has to follow X even if the law should actually be Y. Only an en banc court can reverse circuit precedent.

Background Truth No. 2: Background Truth No. 1 doesn't apply if there's an intervening Supreme Court opinion that changes the result. So if Panel 1 holds X, but the Supreme Court later holds Y, Panel 2 can permissibly rule Y instead of X.

Everyone agrees on the above two Truths.

But today's opinion involves a variant.

What's the rule if (1) Panel 1 holds X, (2) the Supreme Court later holds Y, and (3) Panel 2 then holds X, relying on Panel 1 and not discussing the Supreme Court's intervening opinion? Can Panel 4 hold Y, or is it bound to follow Panel 2's holding of X until reversed en banc?

Where do you come out on this one?

Wherever you come out, you've got some support on the Ninth Circuit. Judge Bade says that if, as here, Panel 2 didn't discuss the intervening Supreme Court opinion, then Panel 3 can rely on that opinion to change circuit precedent (even though Panel 2 didn't). Judge Hurwitz disagrees, and says that Panel 2 made a holding that X is still true, so Panel 3 is bound to follow that holding until reversed en banc.

For now, the rule is the one articulated by Judge Bade, since Judge Tashima agrees with her. It's all kind of silly, akin to (in the present case, anyway) discussing how many angels can dance on the head of a pin, because all three judges on the panel here agree -- as would (I strongly suspect) an en banc Ninth Circuit -- that the rule here should be Y instead of X. So if the Ninth Circuit wanted to take this opinion en banc, I'm sure it could easily dispense with the particular issue here by saying that regardless of whether the majority or dissenting opinion here is correct, the proper rule is Y, so the issue of what a panel is allowed to do is moot.

But it nonetheless remains an important procedural issue. What exactly is the power of a Ninth Circuit panel in the face of (allegedly) conflicting precedent?

For now, at least, that power is fairly expansive.

Rudnitskyy v Garland (9th Cir. - Sept. 14, 2023)

Sometimes the summary at the outset of the opinion (helpfully) tells you pretty much all you need to know. Like this opinion by Judge VanDyke this morning:

"Petitioner has been a lawful permanent resident (LPR) of the United States since 2003. Since that time, he has been convicted of various crimes, including theft, criminal trespass, a DUI, and, as relevant here, possession of heroin in violation of Oregon law. After he received a notice to appear (NTA) initiating removal proceedings, Petitioner applied for cancellation of removal. Such discretionary relief is available to noncitizens who establish a continuous residence in the United States for seven years, subject to a “stop-time rule.” This case turns on the interpretation of the stop-time rule because Petitioner committed the heroin offense within the seven-year period but was convicted after the period ended.

We conclude that the agency did not err in deciding that the stop-time rule is calculated from the date Petitioner committed a criminal offense that rendered him removable, rather than the date he was convicted. We do so because: (i) the text of the stop-time rule set forth in 8 U.S.C. § 1229b(d)(1)(B) provides that once a conviction renders a noncitizen removable, the commission of an underlying offense is deemed to terminate the seven years of continuous residence required to be eligible for cancellation of removal; (ii) the Supreme Court adopted this interpretation in Barton v. Barr, 140 S. Ct. 1442, 1449–50 (2020); and (iii) every other circuit to decide the question (as well as the Board of Immigration Appeals (BIA)) agrees."

You can, of course, read the other 18 pages of the opinion. But it's pretty much more of the same.

Impossible Foods Inc. v. Impossible X LLC (9th Cir. - Sept. 12, 2023)

It's a case involving the scope of specific personal jurisdiction in a particular trademark context, so it's not an issue that you'd think would generate much heat. Moreover, although Judge Bress authors the majority opinion and Judge VanDyke dissents, these jurists agree with each other in a wide variety of cases, so even though their respective styles often differ, you'd otherwise expect them to be somewhat simpatico.

Judge Bress has nice things to say about Judge Freeman's decision below -- even though he ultimately disagrees with her -- saying things like "In a thoughtful opinion, the district court acknowledged that the personal jurisdiction question was 'a close one.'"

By contrast, check out the type of language that Judge Bress repeatedly employs to describe Judge VanDyke's dissent:

"Impossible Foods did not waive its argument that Impossible X’s trademark building activities in California supply a basis for personal jurisdiction. The dissent belabors this point, but it is clearly wrong."

"The dissent is thus quite plainly mistaken . . . ."

"Although we agree with the dissent that the questions presented in this case are difficult, we are duty-bound to resolve them. We cannot avoid them through an inaccurate accounting of the proceedings below."

"[I]t is hardly novel to say that a company that operated from California for years availed itself of that state’s privileges and directed its activities there. The dissent’s hyperbolic assertion that we have engaged in “potentially the most radical reimagining and expansion of specific jurisdiction in decades” is obviously false."

"The dissent is thus clearly wrong in suggesting that under our decision today, a plaintiff like Impossible Foods could bring a declaratory judgment action like this one without any material threat of an enforcement action by the defendant. We of course hold no such thing."

Strong stuff. (Lots of adverbs.)

In re Marriage of C.D. and G.D. (Cal. Ct. App. - Sept. 11, 2023)

Justice Baltodano's opinion earlier today says, in part:

"Father failed to appear for his court-ordered deposition. In response, the trial court sanctioned Father by prohibiting him from: (1) introducing evidence and testimony at trial, (2) cross-examining most witnesses, and (3) making objections on child custody and visitation issues. The only exception to these sanctions permitted Father to 'cross-examine medical professionals, representatives of Child Protective Services[,] and representatives of law enforcement agencies.' Father concedes these sanctions were 'imminently reasonable.'"

Since it's a family law case (and one in which the trial court found that Father repeatedly molested the kids), I can't find most of the briefs online. But since the parties were represented by counsel, I'm hoping that the concession was that these sanctions were "eminently" reasonable (rather than imminent).

But I could see someone making that mistake. In a brief or otherwise.

Peralta v. Sanchez (Cal. Ct. App. - Sept. 8, 2023)

You might perhaps be very skilled, and able to institute legal proceedings and write legal briefs as well as some attorneys. But if you're a layperson, one of the things that you often cannot do either competently or legally is to represent an estate in civil proceedings outside the probate court.

First, as the Court of Appeal holds, you're not allowed to. Second, even if you were allowed to, it's generally not a good idea. If only because, among other things, you generally don't know what you don't know, which in turn can be fatal to your petition.

Get a lawyer.

Doe v. Superior Court (Cal. Ct. App. - Aug. 8, 2023)

We've all heard the saying: "The check is in the mail." Which, as a trope, generally means: "I have not, in fact, paid you yet, and the check is not actually in the mail."

But what if the check is, in fact, in the mail? Have you been paid yet?

The Court of Appeal today says: "No."

It's in the context here of a pretty substantial fubar by the company and, presumably, its lawyers. The company (Na Hoku) gets sued in San Francisco for sexual harassment, moves to compel arbitration, and prevails. So now the company is in arbitration. It pays its initial AAA arbitration fees, but six months later, on September 1, the AAA sends it a bill for the arbitrator's fees ($22,500). The AAA tells the company it can pay those fees online (via credit card, echeck or online) or via a physical check, but either way, the fees are due on September 1 (the day of the letter), and have got to be received within 30 days to avoid dismissal of the arbitration. The AAA also tells the company: You've got to pay the bill within 30 days, and we can't give you an extension, since the CCP expressly says you've only got 30 days to pay before the arbitration gets bounced and the plaintiff can refile in court.

So if you were the company (or lawyer), you'd make sure to pretty quickly pay, right? Maybe on September 2 (that Friday), maybe the next week, or whatever. Definitely sometime that month -- i.e., within the 30 days deadline -- right?

The company kind of did that. It paid in September, before the 30 day deadline. But only if by "paid" one means "sent a check." Did it write a check within 30 days? Yes. Did it put it in the mail within 30 days? Yes. On September 30, that's exactly what it did.

But the AAA didn't receive the check until October 5, which everyone admits is over 30 days past the September 1 due date stated in the letter.

At which point plaintiff says: "Now I get to sue, since you didn't pay within 30 days." The trial court says: "Nope. The company paid by sending the check within 30 days, so you can't sue." Plaintiff files a writ and the Court of Appeal reverses.

"Paid" within 30 days means actually paid. Simply putting a check in the mail during that period doesn't count. So holds the Court of Appeal.

Which is, in truth, a fairly straightforward and common sense interpretation of how we generally do things. We all routinely pay credit card bills, for example. If your payment is due on the 10th, it's not enough to say (or even prove) that you put a check in the mail on that day. What matters is when the check is received. If it's not received until after the 10th, you didn't pay on time. Sorry.

Ditto for arbitration fees.

It's also a mistake that's easily avoided. Why wait until the very last day to pay the bill here? You know it's a statutory deadline, and you also know there are severe consequences for missing it. Just pay it. On time. With time to spare, even. It's like lawyers who deliberately wait until the very last day before the statute of limitations expires before filing suit. As I routinely tell my students, unless there's a darn good reason, don't do that. Just file a week early. It avoids so much potential trouble. Why take the risk?

So too the lesson from today's opinion. When you get a bill for arbitration fees, pay it. Pronto. And go ahead and either pay it online or send in the check with plenty of time to spare.

Why take the risk doing anything else?

One final thing. Even though I'm on board with the result (and resulting rule) here, can I respectfully suggest to Justice Petrou that she remove the citation and quote from Navrides v. Zurich Ins. Co.  on page 16 of the opinion? That portion of the opinion reads: "Our construction and rejection of real parties’ interpretation is also in line with the general principle that the depositing a check in the mail does not constitute payment. See Navrides v. Zurich Ins. Co. (1971) 5 Cal.3d 698, 706 [“the mere giving of a check payable to the agent does not constitute payment”]. . . ."

Yes, that quote exists in Navrides, but it doesn't actually stand for the proposition for which Justice Petrou cites it. The holding in Navrides was about agency principles, which is why the quote says that giving a check "payable to the agent" does not necessarily constitute payment. The check in that case was made payable to two people (a lawyer and client), and the question there was whether that check constituted payment to the one person (the client) who was owed money. Whereas in the current case, there's no agency question, and the check was clearly written to the correct person.

Plus, even if the quote meant to hold what Justice Petrou suggests -- and, again, I'm fine with the truth of the general principle, and the other cases she cites for the point do indeed say precisely that -- it's at least a bit deceptive to omit the next two sentences from the Navrides quote, which make clear that the giving of a check does constitute payment if it is cashed. (Which matters, because, here, the AAA did indeed cash the check.) So, yes, the California Supreme Court did indeed utter the line in Navrides that "the mere giving of a check payable to the agent does not constitute payment," but after the very next sentence, also said "But once the check is paid, the payment of the underlying debt which was theretofore conditional becomes absolute and relates back to the date of the delivery of the check." (emphasis added). You see how the omitted "relation back" stuff totally matters here, whereas the "agency" stuff (from the quote) really doesn't.

So I'd take that citation out. Doesn't add much, and purports to stands for a proposition that's not true. If you hand a person a check on the 10th, it counts as paying them on the 10th, even if they only cash the check (and get the money) on the 13th. So saying, without elaboration, that “the mere giving of a check payable to the agent does not constitute payment” isn't really responsive to what we're talking about in the present case, and might well be misinterpreted (or, worse, relied upon in future cases).

Baird v. Bonta (9th Cir. - Sept. 7, 2023)

Imagine that you brought a Second Amendment lawsuit that said that you had a constitutional right to carry a gun openly in public in California, but the district court denied you a preliminary injunction. Would your dream panel on appeal in the Ninth Circuit consist of Judges Lee, VanDyke and Randy Smith?

Yes, it would.

Sometimes its even more important to be lucky (in the draw) than good. (Of course, it's best to be both.)

United Aeronautical Corp. v. US Air Force (9th Cir. - Sept. 7, 2023)

A company think that the Air Force is wrongfully using some of its trade secrets, but the Air Force says it has a contractual right to do so. So the company files a lawsuit.

You wouldn't think that such a dispute would likely give rise to a profoundly split opinion in the Ninth Circuit, but it does.

Here's a summary of Judge Collins' dissent, which also accurately represents the tenor of the thing:

"The majority affirms the district court’s dismissal of this action for lack of subject matter jurisdiction, holding that the Contract Disputes Act (“CDA”) “impliedly forbids” Plaintiffs from bringing an APA action in federal district court. But the CDA does not impliedly forbid reliance on the APA where, as here, Plaintiffs’ claims and relief are based, not on a Government contract, but rather on Plaintiffs’ independent statutory rights under the Trade Secrets Act. The majority’s contrary decision misconstrues the CDA, contravenes Ninth Circuit precedent, creates a split with four other circuits, and undermines the ability of contractors to obtain injunctive relief in federal court against Government violation of their statutory rights. Accordingly, I respectfully dissent."

People v. Perez-Robles (Cal. Ct. App. - Sept. 6, 2023)

Let me say it clearly, and in advance: Some readers might find the following post NSFW. There are no pictures, but I'm going to mention, in some detail, portions of female anatomy. So if that's something you don't want to read, just skip on over this post and move on to the next.

Okay?

This opinion by Justice Earl involves one of the all-too-typical "massage that turns into a sexual one without the patient's consent" prosecutions. The massage therapist conducts "normal" massages with customers but allegedly touches things he's not supposed to touch with a wide variety of female patients. He's charged with numerous counts of sexual assault, gets convicted, and is sentenced to 15 years in prison.

You can read all 47 pages if you'd like. But the opinion largely consists of what you'd think it would consist.

I only want to talk about a single sentence; one that spans pages seven and eight of the opinion.

Backstory facts first. Counts 3 and 4 concern one of the massages that turned nonconsensually sexual, so the particular details are relevant. (With a trigger warning that they're distinctly sexual.) Here they are:

"The second massage started the same way the first one did. Defendant left the room while R.B. got undressed, lay facedown on the table, and covered herself with a sheet. Defendant came back into the room and began massaging R.B. from her shoulders to her lower back. While massaging her arms, he lifted them in a way that exposed her breasts, and she could feel air on her nipple area. Defendant then moved to her legs. R.B. testified that when he moved the sheet to the inside of her legs, it did not feel as secure as it had during the first massage. He massaged up and down each leg several times and touched her labia. He then put his left hand underneath her pelvis and placed one of his fingers directly on her clitoris. He started moving his fingers back and forth on her clitoris. He did this about five times before R.B. realized she had gotten excited and “wet down there.” She testified she “blanked for maybe one or two rubs, and then I kind of came to and was like, wait a minute, I’m getting aroused in a professional massage. This has to stop.” She said, “Okay,” and defendant stopped."

Based on these facts, Count 3 alleged sexual penetration by force, violence or fear, which is a more serious offense than pure sexual assault. Among other things, that offense requires a sexual penetration, whereas sexual assault does not.

In a typical case, the sexual penetration occurs because the perpetrator allegedly penetrates into the woman's vaginal opening. But that didn't happen here. Instead, the defendant touched the victim's labia and placed his finger "directly on her clitoris" began "moving his fingers back and forth" thereupon.

Does that constitute "penetration" under the statute? Here's what Justice Earl says about that:

"Count 3 was based on R.B.’s testimony that defendant touched her clitoris, and defendant does not challenge the sexual penetration element of that count. Nor could he, because case law teaches that contact with the clitoris, which is located inside the labia, constitutes sexual penetration within the meaning of section 289. (People v. Quintana, supra, 89 Cal.App.4th at p. 1371.)."

I will readily admit that I am not a medical expert, and further, that I do not personally possess the relevant body parts.

But I don't think that second sentence is correct. Either doctrinally nor anatomically.

Anatomically -- and I welcome the views of anyone with more expertise than mine in this area -- while I believe that it is generally accurate to state that "the clitoris [] is located inside the labia," that is not a statement that I believe to be categorically true. This anatomy is relevant because Justice Earl believes that touching a clitoris necessarily constitutes penetration because (1) the penetration statute includes penetration of the folds of the labia, and (2) the clitoris is always located inside the labia, which in turn means that touching the clitoris necessarily involves penetrating the labia. 

I agree with the first (legal) predicate, but not the second (factual) one, which in turn invalidates the conclusion.

My (admittedly) limited understanding -- which I've attempted to confirm on the internet, albeit within the confines of the fact that I'm at work and don't exactly want my browser history filled with all of the relevant searches or resulting web sites -- is that a clitoris may well be, and often is, located inside the folds of the labia, but need not be. Either in particular women (e.g., women with a relatively outsized clitoris, in which it may extend outside of the labia) and/or in particular settings (e.g., after arousal, in circumstances in which a clitoris may become engorged and extend outside the folds). If those facts are anatomically accurate, then it's not true, as a categorical matter, that -- as here -- the fact that the victim testified that the perpetrator placed his finger "directly on her clitoris" is necessarily proof (much less proof beyond a reasonable doubt) that either the inner or outer labia was penetrated. We'd need to know more to establish penetration. (This is unlike penetration of the vagina, which is the classic way in which most defendants are found guilty under the statute.)

Wholly beyond anatomy, I also don't think that the case that Justice Earl cites for that proposition, People v. Quintana, in fact says what Justice Earl thinks it says. That case involved a defendant who digitally penetrated a five-year old girl, and involved direct penetration confirmed by a medical exam that showed "blunt force penetration of hymenal tissue" and "irritation of the perihymenal tissue," "a laceration and broken capillaries at the posterior fourchette," and an "abnormal shape of the border of the hymen [] indicative of a recent injury." In short, there, the little girl was clearly digitally penetrated; it wasn't just that the perpetrator touched her clitoris.

Yes, in the very final sentence of the opinion, the Court of Appeal utter the line: "[C]ontact with the hymen as well as the clitoris and the other genitalia inside the exterior of the labia majoris constitutes 'sexual penetration' within the meaning of section 289." But not only was that statement unabashed (and unexplained) conclusionary dicta, but the underlying case didn't even involve a clitoris (nor touching thereof). Touching the hymen of a four-year old is, anatomically and otherwise, not the same vis-a-vis "penetration" as touching the clitoris of an adult.

So I'd take out the last sentence on page 7 of today's opinion. I don't think it's right. Not categorically, anyway. It's sexual assault, for sure. And, in lots of cases, it might also constitute penetration. But I do not believe that it's true that the touching of a clitoris necessarily involves penetration of the labia. So no need to say so here, especially since defendant -- rightly or wrongly -- conceded penetration here.

It's a theme in the literature that every woman's body is different, there's no "normal," and it's all wonderful. I'd not put in writing that one's clitoris is never outside one's labia unless it's definitely and categorically true.

Law Firm of Fox & Fox v. Chase Bank (Cal. Ct. App. - Sept. 5, 2023)

The probate court orders the sale of a home in an estate, directs that the money be placed in a bank, and orders the bank not to permit anyone to withdraw the money absent an express order of the court. (These are called "blocked accounts".) Chase Bank agreed to these conditions and accepted the deposit of funds into the blocked account; subsequently, however, it allowed someone -- someone without court approval -- to withdraw all the money in the account. 

As a result, a law firm that would otherwise have gotten money from the estate and blocked account -- someone who was entitled to this money pursuant to a court order -- sued Chase Bank.

It takes the Court of Appeal 34 pages to say that, yes, in such settings, the law firm can sue. 

It's kinda crazy that it takes 34 pages to come to such an obvious (to me) conclusion, no? Or that the trial court came out the other way and dismissed the lawsuit.

Chase Bank shouldn't have let the guy withdraw the money, and the law firm was harmed. Even before law school (or becoming a lawyer or professor), I'd have thought fairly clearly that in such circumstances, the law firm could sue.

Which, after today, is indeed the rule.

U.S. v. Torres-Giles (9th Cir. - Aug. 31, 2023)

There are several particularized differences between the majority and the dissent in this case. One of these -- an important one, but certainly not the only important one -- was whether the district court's relatively harsh (high-guidelines range) sentence for illegal reentry was based in substantial part upon the fact that the defendant had allegedly lied to the district court at a prior sentencing hearing.

The defendant here had been deported back to Mexico numerous times and had fairly uniformly come back to the United States (illegally) quite rapidly after being deported. The last time he was caught he was charged with illegal reentry and, during sentencing, allegedly promised the district court judge that he would stay in Mexico this time and not come back. A promise that somewhat bit him in the ass when, one month after he was deported, he was again arrested in the United States for illegal reentry, and brought before the same district court judge that had sentenced him in the prior case. A district court judge who, at a bare minimum, definitely recalled this particular defendant and (maybe) what he had promised the last time around.

So, this time, when sentencing the guy, one of the things the district court judge was miffed about was the prior (alleged) broken promise. There's a fight about whether the district court judge actually had a good recollection of the broken promise (the majority view) or merely a hazy and uncertain one (the dissent). Regardless, Judge Sanchez's majority opinion says that it's not clear that the judge relied that much on the (alleged) broken promise, whereas Judge Mendoza (in dissent) thinks that the judge probably did.

You can read the record for yourself and see which view you fight most appealing in this regard.

But I can add one thing -- something that's maybe (okay, certainly) not subject to judicial notice, but is nonetheless something as to which I'm fairly/supremely confident.

The district judge in this case is down here in San Diego, Judge Burns. This much I know: He most definitely does not take a broken promise allegedly made to his face lightly. There is no doubt that he would care, deeply, about that. That it would matter. A lot.

He's not a judge you want to cross. At all.

Hagey v. Solar Service Experts LLC (Cal. Ct. App. - Aug. 30, 2023)

This opinion seems obviously right, no?

A solar company sells a solar system to a homeowner, and the homeowner in turn owes monthly payments to the company. When the homeowner sells the house, she pays the solar company (in advance) all the monthly payments that are ever owed under the life of the contract, and turns over the solar system to the new owner. But solar company keeps sending bills to the new owner -- bills that aren't actually due. So the new homeowner sues under the (California) Fair Debt Collection Practices Act.

The trial court dismisses the complaint on a demurrer, holding that the new homeowner wasn't covered by the statute because the new homeowner (1) didn't actually buy anything from the solar company, so it wasn't a consumer transaction (between them), and (2) didn't actually owe the defendant money.

But the Court of Appeal -- entirely rightly -- reverses. It doesn't matter that the new homeowner didn't owe anything. The whole point of the statute was to stop debt collectors from trying to collect debts that were not, in fact, owed. Like here.

I'm not at all sure how the trial court could have gotten this one wrong. Regardless, I was glad to see the error corrected in the Court of Appeal.

U.S. v. Pepe (9th Cir. - Aug. 28, 2023)

It's extremely difficult to empathize with a defendant found guilty of moving to Cambodia in order to repeatedly rape children. That's true whether (as here) those children were under 12 or, as defendant contends, slightly older (e.g., 13). The stark reality is that the nature of the crimes, as well as the number of children involved, isn't exactly conducive to wanting to reach out and reverse his convictions.

Now, the sentence imposed on the guy here -- Michael Pepe -- is an extraordinarily long one: 210 years. (Judge VanDyke's opinion today nowhere mentions this sentence, whereas Judge Nguyen's opinion from five years go, which reversed and remanded Pepe's original conviction, does. I suspect that it's not entirely coincidental that opinions that reverse convictions often mention the incredibly long sentence imposed whereas opinion that affirm often do the opposite.) Plus, the guy's old now: according to the Bureau of Prisons, 69. (Also not in the opinion.)

But for most people, neither of those facts will really get the heart pumping to try to reverse in a case like this.

Times a thousand when the panel consists, as here, of Judges Randy Smith, Lee and VanDyke.

Anyway, the Ninth Circuit affirms his conviction after the retrial. So Mr. Pepe will almost certainly die in prison.

Fairly soon, I expect. Life expectancy in prison not being extraordinarily long. (Perhaps particularly for those convicted of raping children.)

People v. Moyer (Cal. Ct. App. - Aug. 25, 2023)

Here's one jury I won't be on. Because even if I lived in Santa Clara county (which I don't), I'd have to admit during voir dire that I have already come to a tentative -- but fairly strong -- opinion that at least certain people in the Santa Clara County Sheriff's Office are totally and completely corrupt, and should be in prison.

The defendant here is Apple's head of global security, Thomas Moyer. There's an underlying legal dispute in the opinion about whether Mr. Moyer can potentially be found guilty for bribing the undersheriff of Santa Clara County with 200 iPads (worth $50,000-$80,000) in return for concealed carry permits on behalf of various Apple employees. The trial court thought he couldn't be found guilty, but the Court of Appeal hold otherwise, so reinstated the charge against him on the second count of the indictment.

Personally, I don't have a particularly powerful feeling as to whether Mr. Moyer is guilty of bribery, and Justice Bromberg's opinion in a couple of places similarly mentions that the evidence against him might not be especially strong (albeit sufficient for an indictment). Maybe he's guilty, maybe he's not. I'm fine to let a jury decide.

But it is my firm opinion that the relevant people in the Santa Clark County Sheriff's Office belong behind bars.

Here's the basic scoop:

"The Penal Code authorizes, but does not require, county sheriffs to issue licenses to carry concealed weapons to applicants who are of good moral character, have good cause for a license, reside or work in the county, and have completed a specified course of training. [Cites] In the Santa Clara County Sheriff’s Office, CCW applications are processed by the public information officer, who is responsible for conducting background checks, arranging fingerprinting, and ensuring that applicants complete the required trainings. 

During the relevant time frame, the Santa Clara County Sheriff’s Office rarely issued CCW licenses. Indeed, the office’s practice was to not even process an application for a CCW license absent a special instruction to do so. Only Sheriff Laurie Smith and a small number of others in the Sheriff’s Office had the authority to give such instructions. One of those individuals was Rick Sung, who appears to have run Sheriff Smith’s 2018 re-election campaign and after the election became the undersheriff, second in command to the sheriff. Undersheriff Sung also had authority to place license applications on hold even after licenses were signed by the sheriff.

Undersheriff Sung abused his authority over CCW applications to extract favors. In 2016 or 2017, Harpreet Chadha, a business owner, applied to renew a CCW license. After the license was signed, Sung placed the license on hold and met with Chadha. Afterwards, Chadha attempted to schedule an event for the sheriff in his company’s luxury suite in the San Jose sports arena. The event did not take place then, and Chadha’s CCW license remained on hold for more than a year until Sung spoke with Chadha in December 2018 and a new permit was prepared. On February 14, 2019, Chadha hosted an event for Sheriff Smith in his company’s luxury suite. That same day, Chadha received his CCW license."

Similarly, when the folks at Apple wanted CCW licenses for their security people, they had to jump through the various (alleged) bribery hoops at the Sheriff's Office. The claim -- which seems darn strong to me -- is that (1) the CCW licenses languished forever, gathering dust, (2) until the folks at Apple made a $1000 campaign contribution to the Sheriff, (3) at which point the CCW licenses were approved but not issued, (4) and Apple was told that they'd never be issued if one particular employee at Apple who donated to the Sheriff's election opponent was getting one, (5) and the Sheriff's office would also be needing $50,000 worth of "free" iPads from Apple, to which Apple (at least initially) agreed.

My honest reaction: Scumbags. Times fifty since they're (allegedly) law enforcement officers.

I know that kind of (blatant) stuff goes on routinely in some other countries, even involving police officers.

Just didn't know it (allegedly) happened in my back yard as well.

People v. Martinez (Cal. Supreme Ct. - Aug. 24, 2023)

Three years ago, when the Court of Appeal struck down Section 1814 of the Insurance Code, which prohibits bail companies from paying inmates from referring potential customers, as an unconstitutional infringement of free speech, I was skeptical, saying (among other things):

Letting bail agents make "arrangements" with inmates to refer clients to 'em clearly, in my view, distorts the marketplace, and punishing such conduct will lead to a marketplace more closely (albeit admittedly still imperfectly) competes on relevant criteria -- price, quality, service, etc.

Today, the California Supreme Court said pretty much the exact same thing -- albeit in 34 pages and in much greater detail -- and unanimously reverses the decision below.

 

Altizer v. Coachella Valley Conservation Comm'n (Cal. Ct. App. - Aug. 21, 2023)

Justice Codrington's opinion earlier today says:

"Appellant Tanner Altizer suffered serious injuries when he ran into a suspended cable fence while riding his off-road motorcycle on an unpaved area in an unoccupied area of the desert. The owner of the property, respondent the Coachella Valley Conservation Commission (the Commission), placed the cable fence around its property to stop illegal dumping and off-road vehicles in order to protect the sensitive habitat. . . .

In 2014, the Commission decided to fence off the perimeter of the property because of vehicular traffic and illegal trash dumping. The Commission opted to use a fence consisting of 5/16” metal cable suspended about 3.5 feet in the air and supported by galvanized posts every 15 feet. (See Appendix A.) . . . . Photographs taken at the crash scene are attached as Appendix A. . . . [T]he section of the cable fence Altizer collided with is unobscured and clearly observable (see Appendix A)."

But I'm looking everywhere in the opinion. Where is Appendix A?

People v. Mumin (Cal. Supreme Ct. - Aug. 17, 2023)

Is footnote six of this opinion really correct?

The whole opinion (and concurrence) is about the "kill zone" theory of attempted murder. It's a criminal law professor -- and philosopher's -- dream, and Justice Corrigan's opinion is incredibly detailed. You'll learn a ton about the subject matter by reading the thing, and it's a multifaceted and complicated doctrine. So if you've got a couple of spare hours to read 70 or so pages of legal theory, seriously, I recommend the thing.

The only thing I wanted to talk about in detail, though, is footnote six. The present case involves a guy who had previously committed a murder who was being sought in a police manhunt. The police trace the guy to an apartment complex, there's a massive police presence while the officers spend an hour going door to door looking for him, and eventually two of the officers start searching a community building in the complex with several closed doors. They're concerned that the guy they're looking for might be hiding behind one of these doors, so just like in the movies, they're super careful when they start opening each of the doors. One of the officers stands way to the side, while another carefully stands to the left of the door and reaches across it to open the door, and when the door starts to open, the guy inside starts shooting -- exactly as the officers feared. The officers return fire and hit the guy, who eventually surrenders.

The shooter gets convicted of murder for the guy he actually killed, but also gets charged with two counts of attempted murder -- one for the officer who opened the door, who the guy was clearly trying to kill, and the other for the officer standing to the side, who the guy didn't even know about but who was arguably in the "kill zone" created when the shooter fired his shots through the door.

The question in the case is whether that second count -- the one based on the "kill zone" theory -- is valid.

The classic "kill zone" case has a ton of bullets shot into a group of people. You can learn more about this from Justice Corrigan's opinion, but the easiest hypo is when you're trying to kill X and X is standing in a tight group of 10 people and you blast your Uzi into the group, killing not only X (who you wanted to kill) but also Y and Z. Even though you were only "trying" to kill X, you're still guilty of intending to kill Y and Z because you deliberately created a "kill zone" around them.

The question here is whether firing three shots from behind a closed door creates similar criminal "kill zone" liability.

Justice Corrigan's opinion notes that most of the kill zone cases involve shooting tons of bullets into the kill zone; e.g., “21 shots into a small space enclosed on three sides." She holds that the three shots here were insufficient as a matter of law to create a "kill zone" on the outside of the door. Although the opinion contains the caveat that "we do not suggest categorically that a kill zone can never be created with a relatively small number of shots," here, the three shots the guy fired weren't good enough to impose kill zone liability.

That's the context in which footnote six appears. Which states, in its entirety:

"The Attorney General asserts Mumin [the shooter] did not shoot more than three rounds because he was wounded by the officers’ return fire. But the inference of intent to create a kill zone is drawn from what the defendant did and the amount of force actually used. While there may be a plausible explanation for why he did not fire more shots, it is not sufficient to argue he might have kept shooting and from that speculation infer that he would have intentionally created a kill zone. Canizales teaches we may only evaluate the intent to create a kill zone based upon the actual circumstances. (See Canizales, supra, 7 Cal.5th at pp. 609–611.)"

Hmmm. I'm not so sure.

It's facially difficult to argue with the general proposition that criminal liability must be "based upon the actual circumstances."  But we're talking here about liability for attempted murder. It's an attempt. And for that crime, sure, we're always concerned about the "actual circumstances" of the crime, but we are also cognizant that what matters is not the "actual consequences" of the crime, but instead what was the defendant's intent regardless of what the actual reality was.

So if, for example, a person points a gun at you and pulls the trigger, they're clearly liable for attempted murder notwithstanding the fact that the "actual circumstances" were that, unbeknownst to the would-be shooter, there were no bullets in the gun. Their intent was to shoot the thing. They're liable.

For that reason, I'm not at all confident that footnote six is correct when it says that what we care about for attempt liability purposes is simply "what the defendant did and the amount of force actually used." What matters instead seems to me what the defendant intended to do and the the amount of force that he intended to apply. After all, the empty-gun shooter didn't actually fire a weapon, and the "amount of force" that he actually used against the victim was zero. But he's still liable for attempted murder.

Similarly, here, if it's true that the defendant intended to, say, empty all ten rounds in the clip against the officers, and the jury found that he would have in fact done so but for being shot in the interim by the police officers, then I don't know why his attempt liability couldn't reasonably be based on the 10 shots he intended rather than merely the three he successfully fired off. No different than the empty gun fact pattern, right?

Imagine, for example, that a guy has a set of explosives wired up to a plunger, with twenty people in the area, with the goal of killing one person (Jim) therein but knowing full well that the explosion will kill all twenty. To be dramatic, right before shoving down the plunger, the guy announces "I put TNT in the mailbox, and now I'm going to create a massive explosion to kill Jim," but this is overheard by a police officer who promptly shoots the guy. If the shot stopped the guy from pushing down the plunger, I have zero doubt that the guy would still be liable for attempted murder, at least of Jim. Similarly, if the shot only stopped the plunger from going all the way down, but it still went halfway down and thereby set off a tiny fraction of the explosives, killing only Jim, it seems to me that the guy still remains guilty of attempted murder of all twenty. That was his intent, and he in fact killed someone (Jim). What matters is not the amount of force in fact used, but rather the amount of forced intended, and what would have been the amount of that force but-for the unexpected police intervention.

So Justice Corrigan's opinion is incredibly detailed and coherent. But I wonder a lot about footnote six.

In re Harris (Cal. Ct. App. - Aug. 16, 2023)

How many published name change decisions have you ever read? Any? How many unopposed published name change appellate opinions have you read?

Let's add this one to the list. A list that, I suspect, consists entirely of itself.

A guy named Andre Pierre Harris wants to change his name, files the appropriate paperwork, publishes the required notice, and shows up for his hearing. No opposition, everything seems fine.

Now, you're thinking that since this is a published opinion, he wants to change his name to "Hitler" or "F**ker" or "Joe Biden Bite Me" or something like that. Nope. Does he want to change his name to something a bit, well, unusual? Yes. At least to a fuddy-duddy like me. He wants to be called ":Minko: Yona-Gvinge: El-BeyⓇ."

Okay. No weirder than X AE A-12. Whatever floats your boat.

Now, from ancillary details in Justice Wiley's opinion, I get the incredibly strong sense that Mr. Harris (as he is currently known) is, shall we say, a little . . . out there. For one thing, in one of the documents in the trial court, he submitted a declaration that says that he's a “living soul, the Spiritual man made from the dust with the holy breath of the Creator YHWH (God)" who's a "native born Mu’ur, native to this land." For those of you who don't understand the reference, the whole "native born Mu'ur" thing is a timeworn "sovereign citizen" involving fictional nations and bizarrely untrue historical beliefs that allegedly exempt people from all taxes, laws, etc.

But whatever. Not a basis for denying your name change, in my opinion. If you don't pay your taxes, we have a remedy for that. If you do, great. Either way, you can call yourself (pretty much) what you want.

But here's the thing. The trial court looks it up, and Mr. Allen has an outstanding warrant for his arrest.

Well now. The trial court says that changes things. It refuses to allow the name change until Mr. Allen clears up the warrant. Mr. Allen appeals, saying that no one, anywhere, opposed his application. But the Court of Appeal affirms.

Which, on the merits, seems reasonable to me. A trial court could reasonably decide to not let you change your name so that when a cop pulled you over you could (truthfully) say "I'm not Andre Harris; I'm Minko El-Bey." Gotta fix the warrant thing first, and then, if you want, change away. That's perhaps a burden (though slight IMHO) on your right to call yourself what you want, but even if so, it's fine.

The one thing I'd perhaps discuss a little more than Justice Wiley did here was the trial court's ex parte investigation into Mr. Harris' status. Yes, the trial court was statutorily obligated to make sure that Mr. Harris wasn't on the sex offender registry. But checking for any warrants seems entirely different to me. I'm not at all confident that the trial court's ability to do the former lets 'em do the latter. Despite the fact that Justice Wiley's opinion seems to conflate the two, or at least breezes through it.

That said, with unopposed name changes, on the merits, I'm probably okay with the trial court doing some very limited investigation on its own. Including seeing if there are outstanding warrants. It's one of the very few reasons why I might stop someone from changing their name, and the reality of name change petitions is that almost none of them are opposed, so a little trial court investigation on its own doesn't seem entirely out of line to me.

Mind you, as an old-fashioned guy, I'm still a little weirded out by the whole "add punctuation to your legal name" thing. Here, the colons and the silly "registered mark" thing (which I believe is also a relic of that stupid sovereign citizen thing). 

But that's probably my problem, not yours.

Just get that arrest warrant cleared up first.

People v. Mitchell (Cal. Ct. App. - Aug. 16, 2023)

What the hell?

On first glance, after reading today's opinion by Division Six of the Second District, it seemed like a run-of-the-mill split in the Court of Appeal. An earlier published opinion (Bartholomew) held that there was no statutory right for the state to appeal when the trial court reduced a felony wobbler to a misdemeanor prior to trial. Whereas, today, the Court of Appeal disagrees with that opinion, and holds that there is, in fact, a right to appeal.

Okay. No problem. Often happens. One panel disagrees with another. Unlike in the Ninth Circuit, there's no horizontal precedent in the Court of Appeal, so that's perfectly fine.

So, initially, all I was going to say was after today's opinion, this clearly becomes a matter as to which the California Supreme Court should grant review. The issue -- pretrial reductions of wobblers -- happens not infrequently, and now you have two opinions with directly contrary holdings. You don't want the law to depend entirely on what panel you happen to draw, so, sure, go ahead and grant review and figure it out.

Simple.

But then I looked up the earlier opinion. From the language of today's opinion, I had assumed that, as usual, it was from another district. ("We disapprove of the holding in Bartholomew.") But when I looked up the earlier opinion, I noticed that -- unmentioned by today's opinion -- it was from the same district; the Second. Not crazy unusual, since Los Angeles is a big county (plus Ventura, Santa Barbara, and San Luis Obispo), with lots of different divisions. But then I also noticed that the prior opinion was also from the same division in the Second, the Sixth.

Now, that's really unusual.

But then it got even weirder. Because the majority opinion repeatedly notes that there was a dissent in the earlier opinion, and often quotes it. Okay. That's, again, not uncommon with horizonal splits. But what the opinion today never expressly mentions is that the dissent in that earlier opinion -- published ten months ago, I might add -- was the same justice who authors today's opinion: Justice Yegan. You only find that out if you compare the opinion's parenthetical mention of the dissent ("A dissenting opinion contended that an appeal is permissible under these two subdivisions. (Bartholomew, supra, at pp. 780-785, dis. opn. of Yegan, J.)") with the last two words at the end of today's opinion ("YEGAN, J.").

I understand that authors often like to refer to themselves in the third person. But I think it bears mention at least somewhere that you were the dissent in that prior case. And that when the author says, as today's opinion does, that "We conclude the dissenting opinion is correct," that you're talking about yourself.

Yeah. Shockingly, the author believes that he's right.

But it gets even weirder.

I then look at the other justices. The author of the prior (November 2022) opinion was a retired judge from SLO sitting by designation. So obviously he's not on the panel for today's opinion. But Division Six only has four active judges, so there's often (though not always) some overlap. In the prior opinion, Justice Gilbert joined the majority. So I assumed that Justice Baltonado and/or Justice Cody from the Sixth -- and/or someone sitting by designation -- were on the panel and joined today's opinion to make it unanimous.

Justice Baltonado: Yep. On today's panel. Justice Cody? Nope. Someone sitting by designation? Nope.

Instead, Justice Gilbert was on both panels and in the majority in both cases. So he joined the majority opinion in Bartholomew ten months ago, over Justice Yegan's dissent, but today, joins Justice Yegan's opinion that says that Bartholomew was wrong.

With no concurring opinion to explain the changed vote.

I know that things get weird sometimes when you don't have horizontal precedent, and the whole stare decisis thing in the Court of Appeal is definitely different than what you see in the federal system. But I don't recall seeing a justice change their vote so rapidly before. Much less without explanation.

In short, the more I read this opinion, the more things got curiouser and couriouser.

(Regardless, what I said at the outset still holds: the California Supreme Court should grant review in short order and decide what the correct rule is.)

U.S. v. Eckford (9th Cir. - Aug. 15, 2023)

Judge Bybee's opinion reads exactly like it's written by the former professor that he is. A scholarly recitation of precedent and how to synthesize it.

R.W. v. Columbia Basin College (9th Cir. - Aug. 14, 2023)

You're not going to find anyone who's more personally invested in the subject of today's Ninth Circuit opinion than me. Trust me on that one. I care deeply about being informed when a student self-reports themselves to mental health authorities for homicidal ideation about killing one of their professors, and have personal experience with the subject. I am in full agreement with (1) the authorities informing the (potential) target of the threat against their lives, and (2) the University taking the matter seriously and attempting to protect the professor.

But if what's in the opinion accurately recites what went down here, I gotta say, I'm disappointed.

A nursing student had intrusive thoughts about killing three of his professors. So he did what I'm sure we all would want him to do -- he went to a doctor, told him about these thoughts, and voluntarily agreed to be admitted to a mental health facility, where he stayed for four days. After treatment, his doctors agreed when he was discharged that the student presented no threat to himself or others.

So far, so good, right? Exactly how we would want the thing to play out.

Eventually, word leaks back to the student's school -- Columbia Basin College -- that the student had these thoughts. The opinion doesn't say how the college found out, but I'm fairly sure that the doctors told the professors about the student's homicidal ideations, at which point one or more of the professors -- understandably -- told the college.

At that point, the college (1) barred the student from campus, (2) failed him in all his ongoing classes, and (3) expelled him from the nursing program.

That seems super harsh. As well as counterproductive to any effort to make sure that students self-report if they ever have similar intrusive thoughts. (Which is something we really, really want.)

The student sues, and since it's a state-sponsored college, there's an 11th Amendment problem, which ultimately leads (in an earlier opinion) to the Ninth Circuit finding that qualified immunity exists on the student's claim for damages. As a result, all that's left is the student's claims for injunctive relief; that he be permitted to finish nursing school, and that his failing grades and college discipline be removed from his transcript.

Knowing only what I know from the opinion, were I the college, I'd be more than fine with that. Maybe I would be super careful about security. But the student self-reported, never harmed anyone, and never even made a public threat to harm anyone. If he's indeed okay at this point, what's the harm in letting him finish nursing school if he can indeed master the subjects and competently treat patients?

Instead, the college continues to litigate the case. A lawsuit that's now gone on for five years, and counting.

The college continues to have all sorts of procedural challenges to the lawsuit, but the Ninth Circuit largely rejects the college's (second) interlocutory appeal. As well as awards costs to the student.

The lawsuit's far from over. But my hope is that it doesn't continue much longer. There's got to be a way to successfully resolve this thing in a manner that's far less wasteful of private and public resources than continued litigation. The lawsuit's already gone on far too long, IMHO.

Don't think about killing your professors. If and when you do, seek help. And if and when a student does so, if you're a college, try to help them further.

That seems like the appropriate way to go.

In re Marriage of Cole (Cal. Ct. App. - Aug. 11, 2023)

I could introduce today's opinion in a couple of different ways. I could potentially describe it as an example of why some people really dislike attorneys. Alternatively, I could perhaps describe it as a cautionary tale for anyone who might be thinking of marrying a lawyer. Maybe both.

But at least if you take Justice Fujisaki's factual recitations as accurate, the attorney here -- Scott Cole -- doesn't come off looking all that great.

"Scott and Kikianne [Cole] dissolved their marriage in 2015, and a “Judgment and Marital Settlement” was entered by the court. In November 2019, the parties entered a stipulation and order requiring Scott to pay Kikianne child support in the amount $7,537 per month for their two minor children. The order also required that Scott pay bonus child support in accordance with a bonus wages report table, capped by Scott’s gross employment earnings of $2 million per year.

For calendar year 2020, Scott’s child support obligations totaled $90,444 ($7,537 x 12 months). Although Scott paid child support for the months of January, February, and March 2020 (totaling $22,611), he stopped making payments in April 2020 without Kikianne’s stipulation or an order of the court.

In May 2020, Scott filed a request for an order modifying his 2020 child support obligations. As the sole shareholder and director of his law firm, Scott Cole and Associates (SCA), Scott alleged that his firm encountered severe economic challenges due to the COVID-19 pandemic and that he had stopped taking a salary from SCA as one of several measures to keep his business afloat. He requested that the court suspend child support payments or set payments to zero.

In opposing the modification request, Kikianne contended that Scott maintained assets, income, and access to funds in excess of $20 million and that he essentially failed to disclose all available income to pay child support. . . .

The trial court subsequently issued a proposed decision, to which Scott lodged objections and claims of error. Thereafter the court issued a final written statement of decision with rulings on Scott’s objections and claimed errors. In making its rulings, the court indicated it found Scott’s testimony “largely unbelievable” concerning his personal finances and transactions. Specifically, the court observed that Scott had little recall of specific and significant facts related to his personal finances and that he was evasive and often impeached by other evidence when questioned about the value of his real estate holdings, the value of his Morgan Stanley investment portfolios and financial holdings, and details of other financial transactions including a loan application he signed in 2019. . . .

The evidence showed that, from 2017 through 2019, Scott reported his salary from SCA as follows. In 2017, Scott received a salary of $11,126,167. In 2018, Scott received a salary of at least $578,767. Although no tax return for 2019 appears in the record, Scott claimed a base income of approximately $117,000 per month ($1,404,000 for the year) in a residential loan application that he signed on October 11, 2019. Scott also stated in that application that he had total assets (stocks, bonds, real estate) worth $6,419,040 and a net worth over $4 million. . . .

For 2020, the year at issue here, Scott reported salary income of $100,000 on his tax return. But there was also evidence that in 2020, SCA maintained $1.4 million in reserves for law firm operating and capital expenses, and the court so found. . . . Here, the court determined that Kikianne “proved, by substantial evidence, that [Scott] has significant net worth, assets, income and earning capacity available to pay” his 2020 child support obligations. Such proof included the evidence that: (1) Scott voluntarily and substantially slashed his salary to $100,000 even though his earning capacity was much higher and SCA has sufficient non-operating reserves to at least cover the $90,444 he owed for child support; (2) in lieu of Scott’s taking a larger salary to meet his personal and family expenses in 2020, Scott and his current spouse evidently covered such expenses in part by taking distributions totaling at least $977,000 from their non-retirement Morgan Stanley accounts; and (3) Morgan Stanley accounts paid at least $387,245 of Scott’s personal and business credit card expenses in 2020. On this record, substantial evidence supports the trial court’s departure from the statutory guideline amount and its denial of Scott’s modification request."

One more quote:

"In its statement of decision, the court commented, “It is unfortunate that an experienced, successful attorney with considerable financial assets and holdings has undertaken vigorous litigation to deprive his children of the support that they require to maintain their status in life. At this point in the litigation, the Parties have spent more money litigating this case than the amount of support that is owed to the Parties’ children. The people who suffered most during this ordeal are the [Parties’] minor children.”"

That was the basis, in part, for the trial court's award to the ex-wife of over $120,000 in attorney's fees. An award that the Court of Appeal affirms, and also awards additional costs to the ex-wife on appeal. 

There are, of course, always two sides to a dispute. But on the record articulated by the opinion, Mr. Cole comes out looking fairly poorly in this one.

 

Metabyte, Inc. v. Technicolor S.A. (Cal. Ct. App. - Aug. 9, 2023)

The appeal involves a complicated issue about when you get equitable tolling of the statute of limitations for particular types of foreign proceedings. Justice Stratton begins the opinion by saying:

"In a case which seems destined for the pages of a civil procedure casebook, Metabyte, Inc., appeals from the trial court’s judgment of dismissal and order sustaining Technicolor’s demurrer without leave to amend. . . ."

It's a very detailed and coherent opinion. That said, I read (and assign) a lot of civil procedure casebooks, not only for my first-year Civil Procedure class, but also for the upper division classes I teach (California Civil Procedure, Pretrial Practice, etc.). So I feel somewhat qualified to make the following prediction:

This opinion will not, in fact, be included in any future civil procedure casebook. It's smart and detailed and maybe should be. But it's about a particular niche that doesn't arise that often. So while I'm certain it will be cited in an ALR or a law review article or something like that, as well as in future Court of Appeal opinions, I don't think many law students will be reading the thing anytime soon.

Still, a neat little opinion, and I learned something from it.

Infinity Select Ins. Co. v. Superior Court (Cal. Ct. App. - Aug. 8, 2023)

Who do you think is right in this one; the trial court or the Court of Appeal?

I can distill the basic facts fairly concisely. Insurance Company issues a policy to Insured that covers a RAM 3500 truck that weighs over 10,000 pounds. California's mandatory minimum insurance law says that if you have a truck (as here) that weighs over 10,000 pounds, the minimum level of insurance is $750,000. Insurer, which knows that the RAM truck is over 10,000 pounds, nonetheless issues a policy with only a $50,000 limit. Insured later drives the RAM truck and kills someone. Insurer pays $50,000, but the Victim (and Insured) say the coverage is the $750,000 minimum.

Does the insurance company have to pay only the $50,000 figure that the policy sets forth, or does it have to pay the $750,000 statutory minimum?

On the one hand, the policy expressly says what its limits are -- $50,000 -- and the insured could at least in theory have bought 15 different $50,000 policies and "stacked" them to satisfy the $750,000 minimum. On the other hand, when it issued the policy, the Insurer also gave the Insured a standard "proof of insurance" form required by law that stated (falsely) that the policy satisfied the statutory minimum, and the policy also contains a provision that says that if there's anything in the policy that conflicts with California law (e.g., the minimum insurance rules), then the policy is "hereby amended to conform to such statutes."

The trial court goes one way, but the Court of Appeal goes another and reverses. On which side of the argument do you fall?

Think about it.

Think about it.

Think about it before I tell you which side ends up winning.

The Court of Appeal agrees with the insurance company, and sets the limit at $50,000.

I think there are good arguments on both sides here, and that the right result is much, much closer than Justice Franson's opinion makes it out to be. Yes, I know, the policy says what it says, and it's primarily the insured who's required to have the requisite amount of insurance coverage, and it's possible at least in theory that the policy here could have been part of a $750,000 "package" of insurance that satisfied the statutory minimums.

But I nonetheless have a very keen sense of what went on here. The insurer knew that the RAM truck was over 10,000 pounds (they all are) and hence knew -- or definitely should have known -- that the statutory minimum was $750,000 in coverage. But it also knew that such a legally required policy was going to be hugely more expensive than a routine consumer $50,000 policy, which was all that the customer here (which didn't know about the 10,000 pound rule) wanted. The customer wanted a cheap policy and a "proof of insurance" form that it could show to cops and anyone else, so rather than lose the sale, the insurance company sold him the thing and issued the (false) proof of insurance.

If you let that happen -- as the Court of Appeal does -- then plenty of people will do precisely that. And, as here, the person who suffers will be a third party (the victim), who -- as here -- doesn't get paid even a smidgeon of her injuries and medical (or, as here, funeral) bills, because the insurance caps out at $25,000 per person and $50,000 total and the people who own and drove the car are (as here) judgment proof.

Plus, I've got a great little business model after today's opinion. I'm going to start writing auto insurance policies that provide $5 in coverage even though the statutory minimum is $15,000. They'll be super cheap, since they provide basically no coverage, but I'll nonetheless issue proof of insurance forms that you can show to the cops if they pull you over and ask for proof of insurance. So I'll get lots and lots of customers. True, if the Department of Insurance ever catches on to what I'm doing, I might be in trouble -- maybe they pull my license (shucks!) or slap me with other penalties. 

But even then, I'll just say, as the Court of Appeal does here, "Oh, sure, I knew my policy only provided $5 in coverage and the statutory minimum is $15,000, but it's possible that my customers were self-insuring for the additional $14,995, or buying 3,000 $5 policies and 'stacking' them to satisfy the minimum. That's the insured's burden to meet the minimum, not mine. Take it up with the Legislature if you want a different rule, but what I'm doing is totally legal."

Right?

Last v. Last (Cal. Ct. App. - Aug. 2, 2023)

My only thought here is that if this opinion is correct, jurisdiction in family law court must be quite a bit different than in regular civil court.

Michelle and Peter Last get married in 2002 and file for divorce in 2021. Before getting married, they signed a prenup, in which Peter agreed to give Michelle various monies and in return Michelle agreed to waive spousal support ("alimony") in the event they got divorced. Assuming the parties dotted the i's and crossed the t's, that prenup would be valid and enforceable.

During the divorce proceedings, Michelle asked for temporary spousal support. To be clear: she was the one filing the motion. Peter, in opposition, replied that no spousal support was due since the parties had signed a prenup that so stipulated. Michelle, in reply, said that the prenup was invalid because Peter was rich and she was relatively poor.

To decide whether the prenup is valid, the trial court has to make five particular statutory findings. But at the hearing, the trial court never decided whether the prenup was valid at all. Instead, it ordered $8,511 in temporary spousal support to Michelle, and said that it'd work out later whether the prenup was valid -- and, if it turned out that it was, that Michelle would likely have to pay back the money.

At which Peter files an appeal.

In a fairly erudite opinion, Justice Sanchez affirms. (Technically, to avoid difficult appellate jurisdictional issues, the Court of Appeal treats the appeal as a petition for writ of mandate, which it then denies, but the effect is the same.) Justice Sanchez says that prenups are presumed invalid under the statute and are only valid if five particular findings are made by the trial court, and since the trial court here didn't make any of those findings, it's presumed invalid, so the award of temporary support is fine. And that, if it turns out the prenup is valid, yes, Peter can get back the money at the end.

Logical enough, as far as it goes.

But here's the part that confuses (and somewhat worries) me. Justice Sanchez says:

"When the trial court heard Debra’s RFO it did not have jurisdiction to conduct a facial review of the Premarital Agreement and make findings under section 1615(c). The court had jurisdiction only to decide the matters set for hearing that day, which were Debra’s RFO, which sought temporary spousal support and need-based attorney fees, and Peter’s responsive declaration, which sought bifurcation of trial on the validity of the Premarital Agreement and a continuance of the hearing on spousal support."

Really?

It's true that Peter never filed his own motion that said "Decide if the prenup is valid and make the required findings." But in response to Michelle's motion, Peter very clearly said "No, don't grant spousal support, because we have a prenup that waives support." Accordingly, the only issue at the hearing was whether the prenup was valid: Michelle said it wasn't, and Peter said it was. And Peter went ahead and submitted the prenup to the Court, which seems fairly clearly (the Court admits) to contain all of the five things that the statute says it has to contain in order to be valid.

Doesn't that give the court jurisdiction to decide if the prenup is valid, even though there's no separate motion?

To a regular old civil litigator like me, that's your defense to the motion, and the court has jurisdiction to decide whether that defense is valid. Even if you don't make your own motion. For example, if plaintiff files a motion for a preliminary injunction, and I respond: "No, don't grant the motion, the plaintiff has already settled this dispute; here's the settlement agreement he signed," surely the court won't say "Oh, sorry, you didn't file your own motion to declare the settlement agreement valid; injunction granted." How is it any different here?

I'd think that the introduction of a defense (as here) necessarily grants the court jurisdiction to resolve the merits of that defense, including (as here) the validity or invalidity of that defense.

I was thinking that, maybe, family law court is perhaps different in that regard, so I looked up the only case that the Court of Appeal cites for its "no jurisdiction" holding. But that's not a divorce case at all, and is instead a normal writ proceeding that merely holds that when the petitioner asks only for X in its writ (there, to not produce some documents), the trial court doesn't have jurisdiction to grant petitioner an alternative, Y, that the writ petition never requested (there, to redact the documents instead). That's world's apart from the present case. Indeed, the Court of Appeal there repeatedly said that the court's jurisdiction is limited to any relief "encompassed within the issues raised by the petition." It seems here that the "issues" raised by Michelle's request (alongside Peter's defense) clearly include whether the prenup is valid; indeed, that's basically the only dispute between the parties at all on this score.

Would it have been clearer if Peter had expressly said in his opposition: "Please make the five findings necessary to declare the prenup valid?" Sure. But even without such an express statement, that clearly was his defense. So I'm not really sure that there was no "jurisdiction" to make these findings.

(I could potentially see an argument that Peter waived any request to have the prenup declared valid if the Court of Appeal thought that his opposition didn't set forth the required facts, or affirmatively said that he didn't want that relief now, but given that the prenup was his only defense, I'm not confident that that's what he really was doing.)

Anyway, those are my thoughts on jurisdiction for now.

Just one more thing on the merits. Clearly Peter is not far from poor, since the temporary support that was ordered was over $8000 a month. The opinion recites the details of the prenup: "(1) Debra waived the right to receive spousal support or alimony from Peter; (2) in consideration for the spousal support waiver, Peter agreed to pay Debra the following: (a) the sum of $16,000 within three days of their marriage as Debra’s separate property, (b) $3,500 upon completion of each of the seventh, eighth, ninth and tenth years of marriage ($14,000 total), and (c) $4,500 upon completion of each of the eleventh, twelfth, thirteenth, fourteenth and fifteenth anniversaries ($22,500 total); and (3) all equity in Peter’s separate property residence was transmuted by Peter into community property."

Doesn't that seem chintzy to you? Like, super chintzy? Admittedly, I don't know how much the house ("separate property") was worth, or how much equity was in it. But $3,500 or $4,500 a year for the whole marriage, even if (as here) they're married for 15+ years?! 

It almost seems less insulting to give the (prospective) spouse nothing.

People v. Del Rio (Cal. Ct. App. - Aug. 2, 2023)

"Sure, I committed a double murder back in 1977, was convicted of it, and my conviction was affirmed on appeal. But guess what? That was 45 years ago, and you guys in San Diego can't find the trial transcript at this point. So you can't prove that I personally committed the murders, which means I get released!"

Court of Appeal: "Yep. That's right."

I certainly hope that they lose the trial transcript if I ever commit a double murder as well. Wow.

Just a hint: You might want to hang on to this stuff. Kinda important.

Earley v. WCAP (Cal. Ct. App. - Aug. 1, 2023)

Here's something about a timeline that I didn't previously know anything about. (Though that's perhaps not surprising, since I don't do workers' compensation cases.)

If you don't like how the Workers' Compensation Board decides your case, you can file a petition for reconsideration. That's not surprising; many tribunals have a similar principle. Since it's California, the statute also gives a timeline not only for filing such petitions, but for the Board to act on them as well. The Board has 60 days to rule on the petition for reconsideration, and if it doesn't do anything during this time period, the petition is deemed denied.

Again, not unusual.

But the Board often feels like taking more time than the statutory 60 days. So here's what it does: During the 60 day period, it files a boilerplate "grant for study" order. These orders all say the exact same thing:

“Taking into account the statutory time constraints for acting on the petition, and based upon our initial review of the record, we believe reconsideration must be granted to allow sufficient opportunity to further study the factual and legal issues in this case. We believe that this action is necessary to give us a complete understanding of the record and to enable us to issue a just and reasoned decision. Reconsideration will be granted for this purpose and for such further proceedings as we may hereafter determine to be appropriate.”

How often does it do this, you might ask? A lot. Between 2015 and 2019, the Board entered these orders in response to 19% (roughly a fifth) of petitions for reconsideration. And during the COVID years, the Board entered these orders in response to 38.5% of petitions (i.e., over 3/8th of petitions).

That's a neat little trick to get more time. (Notwithstanding a Legislative mandate.) Moreover, the Board has been using this trick for some time; at least since 1913. Finally, by "more time," we're talking about a fair piece of time in addition to the statutory 60 days. "The time between the filing of the grant-for-study orders and the Board’s final decisions ranged from five to 21 months."

Nonetheless, the trick used by the Board works. Except for one problem. The statute also says that any grant of a petition "shall state the evidence relied upon and specify in detail the reasons for the decision." Technically, grant for study orders involve "granting" the petition, but does the boilerplate statement accompanying these grants sufficiently state the evidence and reasons for the decision?

The Court of Appeal says: "No." Rubber stamp explanation aren't good enough. You have to actually give reasons. Particularized ones.

Which does seem to me what the statute requires. Though I might have taken a different view if the Board was only doing stuff like this in, say, one case in a hundred (or thousand). Then the rubber stamp that the Board currently uses might be good enough for me.

Let me add one more thing, though. I thought that it was somewhat funny (ironic?) that the Court of Appeal was being so strict about the relevant statutory timeline here given that it routinely uses a very similar trick to avoid the statutory deadlines imposed on it by the Legislature. As most of you know, the California Constitution (and a supporting statute) requires that judges decide cases within 90 days of their submission, on penalty of the judge not receiving their salary. So how do state court appellate judges solve this problem? By taking however long they want to "tentatively" decide a case and write an opinion, and then only "submitting" the case on the eventual date of oral argument. Deadline solved, even if the appeal itself drags on for years and years and years.

Oh, and on occasion, when there's been an oral argument and the 90 day clock is about to expire, state court judges sometimes do what happened here: They simply "reset" the clock by vacating submission and resubmitting the case sua sponte. With a boilerplate order that looks awfully similar to what we are insulting the Board for doing in this opinion. ("Pursuant to California Rules of Court, rule 8.256(e)(1), submission of the above entitled matter is hereby vacated and the cause resubmitted as of this date for the period allowed by law, in order to allow the panel additional time to consider the presently circulating opinion.")

In short: Do what we say, not necessarily what we ourselves (basically) do.

With the caveat that, yeah, technically, that's what the statute says.

Raidoo v. Moylan (9th Cir. - Aug. 1, 2023)

There last doctor in Guam who was willing to perform an abortion there retired in 2018. So the only way you can get an abortion in Guam these days is (1) to do it medicinally, (2) through telemedicine (there are a couple of doctors in Hawaii who are willing to do this).

Guam passed a law, though, that says that in order to have any abortion, you have to receive "in-person" information about various social services, etc. Plaintiffs say: "But, in Guam, since there's no one here, this basically means that no abortions are allowed, period."

The district court entered an injunction against the law. Today, the Ninth Circuit reverses.

I strongly suspect that the plaintiffs are correct that this practically operates as a categorical ban on abortions in Guam. And it's not exactly possible for someone in Guam to get in a car and drive to another state that allows abortions.

The Ninth Circuit panel here consists of Judges Bea, Collins and Lee; appointees of President Bush, Trump and Trump (respectively).

Not exactly the greatest draw for the plaintiffs, eh? 

People v. Gruis (Cal. Ct. App. - Aug. 1, 2023)

It's amazing how disparate sentencing can sometimes be between federal and state court. In federal court, you will routinely see opinions that involve 30- (or 40- or 100-) year sentences for possession of child pornography. Whereas, today, in state court, you read an opinion in which the defendant is convicted of possession of child pornography -- numerous pictures of a 13-year old daughter of his girlfriend -- and he receives . . . one year in county jail.

That's a big difference.

P.S. - The opinion also holds that it's too vague for a condition of probation to be that the defendant not possess any "pornography" at all. It's a sufficiently indefinite term -- how do you decide what counts as "prurient" sexual content? -- that it "would prevent [defendant] from viewing Oscar-winning films like American Beauty and Brokeback Mountain, television shows like The Wire, or sexually explicit works of art that appear in museums.”

City and County of SF v. US EPA (9th Cir. - July 31, 2023)

Here's what I learned from today's Ninth Circuit opinion:

In many cities (including San Francisco), your toilet is connected to the storm drain system. As a result, all the wastewater (including rainfall) gets treated before it's discharged.

Which works well. Until it rains a lot.

Then, the system is overwhelmed. At that point, the wastewater treatment system does what it can, but is forced to dump untreated wastewater directly into the ocean. With a reminder that this water includes material that comes directly from your toilet.

Needless to say, that's not so great for water quality.

But the EPA generally requires at least one thing in these systems. You gotta remove "floatables" from the wastewater before you dump it in the ocean.

You heard me. Floatables. Which is exactly what it sounds like.

Listen, I don't know about you, but if there's one thing that I most definitely do not want to see in the ocean while I'm surfing, it's "floatables" from someone's toilet.

That sounds like pretty much the irreducible minimum for water quality to me.

Boermeester v. Carry (Cal. Supreme Ct. - July 31, 2023)

The right to actively cross-examine the complainant and principal witness against you:

Critical in criminal cases.

Not really important when a private university decides to expel you.

So (unanimously) holds the California Supreme Court.

Doe v. Superior Court (Cal. Supreme Ct. - July 27, 2023)

You rarely see writ proceedings successfully prosecuted during the middle of a trial, yet that's exactly what happens here. Moreover, the dispute here goes all the way to the California Supreme Court.

Plaintiff sued a school district for being sexually assaulted, and while the district admitted negligence, it argued that some of Plaintiff's damages resulted not from the assault by the teacher, but from a later sexual assault of the Plaintiff. The parties then fought about whether evidence of the subsequent sexual assault was admissible, and after the parties had given their opening statement at trial, a writ was filed, the trial got stayed, and ultimately it goes all the way up to the California Supreme Court, which holds: "Maybe the evidence is admissible. Read what we've written and try to resolve the issue again, trial court."

(Okay, that's not an actual quote, obviously, but you get the point.)

One procedurally interesting thing about all of this is that, to reiterate, all the writ proceedings transpired after the jury was empaneled and while the trial was temporarily stayed. So now that the writ proceedings are over, the trial can restart.

Which is fine, and the California Supreme Court notes that as long as the jury is still empaneled -- which at oral argument the parties confirmed -- that same jury can get back together and resolve the matter on remand.

But the opening arguments here were over two years ago. The trial has been stayed since around May of 2021; that's when the whole thing got interrupted.

Can we please just simply empanel a new jury. Here's no way that one or more of the jurors haven't looked up the status of the case or what the writ proceedings involved. I don't care how much you instructed them not to or what they might say at voir dire. It's way to big of a risk to re-empanel them again after two years of sitting at home. (Without much benefit, either; the only thing they heard as far as I can tell were the opening statements, which might well have to be redone anyway depending on what the trial court holds on remand.)

Let's just play it safe and restart the whole thing over again, okay?

Kuciemba v. Victory Woodworks (9th Cir. - July 25, 2023)

Some opinions -- even important ones -- don't take too much time to write. Today's opinion from the Ninth Circuit is a great example. When I first read the thing, I actually wondered why it took almost three weeks -- admittedly, an incredibly rapid disposition -- to write it. But, upon sober reflection, I'm starting to think that, in fact, Judge McKeown actually wrote (and published) the thing a little too quickly.

But I'd love to hear if others disagree.

The cases is about whether you can sue the employer if your spouse negligently gets COVID from work and subsequently gives it to you. The district court thought you couldn't, so dismissed the plaintiff's suit. The Ninth Circuit panel wasn't sure, so it certified the question to the California Supreme Court. On July 6, the California Supreme Court answered the certified question, holding -- unanimously -- that you can't sue.

So you can see why the subsequent Ninth Circuit opinion is fairly easy to write, no? Today, in a half dozen pages, Judge McKeown basically summarizes the California Supreme Court's opinion and holds that, yep, you can't sue, so affirms the district court. The Ninth Circuit opinion basically writes itself, which is why it doesn't take that much time (or space).

So great job by Judge McKeown's chambers getting the thing out so quickly. No need to let the thing linger.

Except for maybe one thing:

Is the California Supreme Court's decision even final yet?

I don't think so. The opinion was issued on July 6. The usual rule is that California Supreme Court decisions are final 30 days after filing, unless the opinion says otherwise (Rule 8.532(b)). The California Supreme Court's opinion nowhere said otherwise, so that means it's not final until a couple of weeks from now. And I'm pretty sure you're supposed to wait until the opinion you're relying on is final before you dismiss a lawsuit based on that other opinion, since, in the meantime, the other opinion could be amended, modified or even reversed.

Of course, you and I both know that there's no way in the universe the California Supreme Court's unanimous opinion on the certified question is materially changing either any time soon, or ever. But technically, I think that the Ninth Circuit probably should have kept this one in chambers for another two weeks before publishing the thing.

No biggie, though. Everyone knew what was going to happen anyway three weeks ago. 

Just a formal set of rules about finality and such. Hypertechnical, of course, but rules.