Wednesday, September 19, 2018

C.J.L.G. v. Sessions (9th Cir. - Sept. 19, 2018)

As I said back in January, the petitioner here is definitely a sympathetic one, and is a "Honduran kid who 'repeatedly spurned the Mara gang's entreaties to join its ranks despite death threats made against him and his family'" but who the United States now intends to sent back to Honduras and this gang.

Even though the panel was (somewhat) sympathetic to his plight, there was no dissent -- everyone agreed that his claims should be rejected.

The Ninth Circuit as a whole perhaps felt the sympathetic -- and legal -- pull a bit more strongly than the members of the panel.  Today, it takes the case en banc.

Cuero v. Kernan (9th Cir. - Sept. 29, 2018)

The Ninth Circuit's published "opinion" today is indeed brief, and states in its entirety:

"In light of Kernan v. Cuero, 138 S. Ct. 4 (2017), we affirm the judgment of the district court. AFFIRMED."

Makes sense.  Though I note that the Supreme Court decided that opinion on November 6, 2017.  Which makes it a bit surprising (though perhaps not unusual) that it took nearly a full year for the Ninth Circuit to write that single sentence.

But no matter.  Case over.


Tuesday, September 18, 2018

Freestream Aircraft v. Aero Law Group (9th Cir. - Sept. 18, 2018)

It's nice when the Ninth Circuit writes an opinion that explains and cleans up an area that's full of sloppy circuit precedent.  Which is exactly what Judge Nguyen does here.  Different Ninth Circuit opinions have done different things to decide whether there's personal jurisdiction when someone commits a tortious act that has an effect in the forum state.  Some cases have directly found personal jurisdiction whereas some have applied the Calder effects test.  Judge Nguyen's careful opinion goes through these cases and explains -- correctly -- that the right test depends on whether the defendant has engaged in the relevant conduct in the forum state.  If so, the usual "purposeful availment" lines of precedent apply.  If not, the Calder effects test applies.  The Ninth Circuit has previously mixed that up, albeit typically in dicta and/or sloppy language.  This opinion helpfully sets things straight.

With two caveats.

First, a totally minor one.  In the second footnote, Judge Nguyen cites the Supreme Court's recent (2014) opinion in Bauman.  Fair enough.  But the case is now four years old.  It's in the United States Reports; e.g., has a "U.S." citation.  No reason to use the old citation in the Supreme Court Reporter (i.e., the S.Ct. cite).

Second, the substantive one.  As I said, I think that Judge Nguyen is correct on the merits and in how she analyzes and rationalizes prior circuit precedent.  But the discussion in section I.C. of the opinion is a bit off.  There, Judge Nguyen discusses at some length the Ninth Circuit's recent (2017) opinion in Morrill -- an opinion that typifies the use of the effects test even when the defendant engaged in conduct inside the forum state.  But Judge Nguyen says that this opinion doesn't really stand for that proposition because the relevant conduct (filing suit) actually transpired outside the forum state, and hence that the effects test was properly employed there.

Fair enough.  Some of the conduct at issue did indeed occur outside the forum state.

But some of it undeniably occurred inside the forum state.  Making the effects test (under Judge Nguyen's own view) inappropriate.

Judge Nguyen responds by asserting that the actionable conduct nonetheless occurred outside the forum state.  But that's not actually true.  Yes, the filing of the original (allegedly wrongful) action occurred elsewhere.  But the complaint in Morrill definitely sought relief for allegedly abusive and wrongful conduct that transpired inside the forum state; e.g., filing an action to enforce a summons for a (purportedly wrongful) deposition of the other side's lawyers inside the forum state.

Judge Nguyen admits that "at first blush" that might seem to be at odds with her interpretation of circuit precedent, but says it's not really, since the allegedly actionable conduct inside the forum state was "required" (Judge Nguyen's emphasis) by the litigation outside the forum state.  But, as a factual matter, that's just not true.  Nothing in the original litigation required the party there to notice and attempt to take the allegedly wrongful depositions of the other side's lawyers.  That was optional, and outside the state.  They did so.  In that state.  So the right test for that should not be the effects test.  Yet that's what the court applied.  Judge Nguyen's purported description of the case isn't, in my mind, accurate, or consistent with her worldview about what the underlying cases "really" hold.

Moreover, Judge Kleinfeld made exactly the same points that Judge Nguyen is making here in his dissent in Morrill.  Yet the majority disagreed.  It's not particularly persuasive to say that a case really stands for X when the dissent says that X is the law and the majority says otherwise.

It's not that I'm not sympathetic to what Judge Nguyen is doing here.  I am.  There's a bad case, and it makes bad (or at least doctrinally inaccurate) law, so you want to narrow it.  But you're not allowed to say that the case is simply wrong; for that, you need an en banc panel.

So you distinguish it.  Say it actually is founded on X.  Something that's consistent with what you think is actually the law.

The only problem is that it's not actually true.  And you gotta be honest, I think.  Say:  Yeah, in truth, I have no doubt that the panel thought that Y applies, even on Z facts, but actually, they're wrong.  If that means you gotta go en banc, so be it.  Hopefully your fellow Ninth Circuit judges will agree.

Nor do I think it much matters that the (inaccurate) distinction that Judge Nguyen advances is one that the panel itself might well have also (erroneously) advanced.  There are portions of the opinion in Morrill that say, as Judge Nguyen does, that what the party did in Arizona was "required" by the underlying litigation in Arizona.  But, again, that's not true.  What was legally required in Arizona (i.e., asking for a sister state subpoena) was indeed procedurally required, but only if you wanted to engage in the purportedly tortious conduct at issue -- i.e., to set the optional and tortious depositions of the opposing party's lawyer.  Since the other-state litigation didn't require that tort, that's not a distinction.

And you can't rely on a distinction when you're "rationalizing" circuit precedent when that distinction doesn't in fact make sense.  To take an obvious example:  Let's say the prior panel said "Well, yeah, he did something directly in the forum state, but the effects test applies even in those situations if the defendant's last name begins with 'M'."  When you make sense of competing prior circuit precedent to hold (as Judge Nguyen helpfully does here) that the effects test doesn't apply when the defendant did something directly the forum state, you can't then just say "Yeah, there's one case that holds the other way, but in that case, the defendant's last name began with an M."  If the distinction is wrong or does not make doctrinal sense, you can't use it.  Particularly when, as here, the dissent's making the same doctrinal point that you purport to make -- a point that the majority opinion rejects.

So bravo for Judge Nguyen trying to make sense of a jumble.  The opinion's well-written and for the most part right.

But sometimes there's that sole, super pesky case on the other side.  At which point you gotta deal with it on the merits.  Which sometimes requires that you just forthrightly admit that that opinion was wrongly decided.

Whatever consequences that brings.

Bottani v. City of San Diego (Cal. Ct. App. - Sept. 18, 2018)

Sometimes the best thing that the City can do for you is to declare one of your buildings a public nuisance and order you to tear it down.  Typically, that's something you don't want.  But in this case, it's crystal clear that the owners of the building were just itching for precisely that.  Because that way they could tear down the tiny, historic (formerly beachside) villa -- worth virtually nothing -- and build something much larger in its place, earn millions in profits, and avoid the need for an expensive environmental review.

The owners got their wish.  It was the owners of the building who hired a firm to try to convince the City that their own building was an unsafe nuisance.  The City so held, and told the owners that they could tear this nuisance down.  At which point the owners tore the thing down literally the next day.

The Court of Appeal agrees with the trial court that given these events, the owners don't have to submit to an environmental review.  Just go ahead and build on the (now empty) lot.

And rake in the dough.

It's definitely a nice lot.  Down here in La Jolla.  I bet it's going to be a nice replacement building as well.  Just a lot more modern.  And expensive.

One last thing.  Did I mention that the owner of the building is an attorney?

Figures.

Monday, September 17, 2018

Taylor v. BNRH (9th Cir. - Sept. 17, 2018)

It makes total sense to certify this question to the Washington Supreme Court.  Federal and state courts are split on whether (and to what extent) obesity is a protected "disorder" under the ADA or  state law equivalents.  Moreover, Washington's state law equivalent is almost always interpreted more broadly than analogous federal or state statutes (reflecting, of course, the left-of-center nature of that particular jurisdiction).  Given these facts, rather than speculate, it makes sense to ask the Washington Supreme Court directly.

For whatever it's worth, on the merits, I think that the EEOC (and Montana Supreme Court) take the right approach.  Deviations in weight that are "normal" shouldn't qualify.  It's not a protected class to be six foot tall and, say, 170 vs. 200.  Not actionable if an employer, say, hires one over the other.

But once you're an outlier, that may well constitute a disability.  Something easily satisfied here.  The plaintiff "weighed 256 pounds at a height of 5-feet, 6-inches, yielding a Body Mass Index (BMI) of 41.3. A BMI over 40 is considered “severely” or “morbidly” obese."  And the railroad made everyone with a BMI over 40 pay for various tests (which the plaintiff here couldn't afford).  That activates the statutory protection, in my view.  Or should.

I recognize that other courts think that it matters whether the obesity has a physical or physiological cause.  Not me.  Drawing that line seems too tough. Whether you're 256 because you really like to eat (and/or not exercise) or because you "need" to eat (or "can't" exercise) doesn't matter to me.  The fact is you're 256, and that makes it tough for you (at 5'6") for do a variety of life events -- and subjects you to a certain reaction by a segment of the population.  That's what matters to me.  Not whether we can effectively "isolate" a particular "cause" of why you weigh what you do.

But we'll see what the Washington courts say.  I suspect they may take a view similar to mine, but who knows.


Friday, September 14, 2018

People v. Cruz-Lopez (Cal. Ct. App. - Sept. 14, 2018)

In a post earlier this week, I waxed poetic about the term "scrap," which was discussed in an opinion by the Ninth Circuit on Tuesday and is a derogatory term for members of the Sureño gang that is often employed by members of the rival Norteño gang.  As I said, I'm eminently familiar with that insult, since it's been used in approximately 250 opinions in the California Court of Appeal alone.

Coincidentally enough, today's opinion mentions that the perpetrator called the victim "Chapete.”  That's a term that I haven't heard before.  And guess what?  It turns out that, according to Justice Dondero, that term "is derogatory term Sureños label members of the Norteños."

Now I know both!

I was surprised that I hadn't heard that term before.  If only because the Sureños and Norteños are fighting all the time and result in a plethora of published opinions here in California.

So I looked it up.  The term "Chapete" has indeed been used (and discussed) by the Court of Appeal before.  But only a half-dozen times.  And only in unpublished opinions.

Hence undoubtedly why I didn't recall seeing it before.

Fortunately for us, today, the Court of Appeal publishes this opinion.  The first one ever to use the published term "Chapete".  Right on the heels of our prior discussion of "scrap".

What a wonderfully informative week.

P.S. - I also did look up where the phrase "Chapete" comes from.  It's of Spanish origin.  I'll leave it at that.




In re Sims (Cal. Ct. App. - Sept. 14, 2018)

There are lots of opinions that arise out of convictions for murder.  There aren't many opinions that arise out of convictions against an attorney for murder.

This is one of the latter.

It's indeed a sad tale.  I'll recount just some of the facts:

"Defendant and petitioner Karen Sims, a former attorney with serious mental illness of longstanding, was convicted of murdering her husband Henry Sims in 2006 and was sentenced to prison for a term of 50 years to life. . . .

Defendant has a history of mental illness that includes at least one prior hospitalization lasting two years and had manifested itself in violent knife assaults against her husband and her daughter while the family lived in Colorado. After being released from an extended psychiatric hospitalization in Colorado, the family moved to California where defendant practiced immigration law.

In 2005, when defendant’s daughter was home from medical school for the summer, defendant was behaving combatively and secretively, refusing to take her medication. She was suspicious of conspiracies, convinced that she was God’s daughter fighting demons, or the daughter of an alien fighting some sort of intergalactic war on earth. She accused her husband of adultery, occult practices, and devil worship. Defendant also accused her husband of carrying on with prostitutes and drugging her at night. She also behaved erratically with her office staff and clients, and sometimes missed court appearances.

Things came to a head in September 2005, when there was an incident at Lake Evans in Riverside. After the incident, defendant and her husband drove to Blythe, where defendant shot her husband several times, killing him. . . .

Defendant made bizarre statements during the hearing on her request to represent herself and during trial. [Footnote: "The record is replete with bizarre statements by defendant. The fact we limit the number of her delusional statements here is not intended as a comment on the significance or relevance of other statements."] In her opening statement, she talked about the Greek word for devil, the biblical story of Jezebel, and described her 25 years of marriage as “very colorful” and “a lot of joy.” She denied killing her husband, asserted that he was alive when the coroner’s photographs were taken, and proposed he was beaten and murdered by someone else while defendant was in custody."

A sad tale indeed.

Thursday, September 13, 2018

In re G.C. (Cal. Ct. App. - Sept. 13, 2018)

Everyone's pretty darn blunt in this one.

When asked why she stole the car, the juvenile forthrightly said she did so "so she can sell their parts so she can purchase drugs and food.”  Points for honesty, that's for sure.

Similarly, Justice Mihara doesn't mince words when he says that he's dismissing the appeal because he thinks it's time-barred, notwithstanding an opinion from the Fourth Appellate District that holds to the contrary.  It only takes him three (double-spaced) pages to say, in unvarnished language, that he thinks that the Fourth District's decision was a total crock.  (Repeatedly saying, for example, that the authorities on which the Fourth District relied have "nothing to do" with the alleged issue at hand.)

Pretty forthright as well, I think.

Justice Greenwood dissents.  She doesn't think that the Fourth District's opinion is a crock at all; instead, she believes it articulates the right rule.

The majority and dissenting opinions are short ones.  And not the most earth-shatteringly important dispositions in the universe.

Nonetheless, given that there's now an express conflict below as to the jurisdictional timeliness bar at issue, it seems to me that the California Supreme Court should grant review in this one and clear up the conflict.  Pretty easy to decide one way or the other.  And that way we'll have one clear rule that practitioners (and the Court of Appeal) can follow.




Wednesday, September 12, 2018

DNC v. Reagan (9th Cir. - Sept. 12, 2018)

You can read today's 125-page, single-spaced opinion by the Ninth Circuit -- as I did -- in its entirety to get a keen sense of the jurisprudential differences between Judge Ikuta (who authors the majority opinion) and Chief Judge Thomas (who authors the dissent).  Both jurists are bright and express what are undeniably coherent views.  But you're almost certainly going to like one approach over the other, depending on your personal jurisprudential (and perhaps political) tastes.

There are nonetheless two parts of Judge Thomas' dissent that strike me as undeniably true.  First, that the right to vote is an incredibly important one; indeed, the foundation of all other rights.  So the judiciary should be at its most vigilant in protecting that right.  (John Hart Ely makes some darn good points in this regard.)

Second, as Judge Thomas artfully puts it, "voting should be easy in America."  That seems to me to be unquestionably right.  To a degree, voting is fairly easy.  But it's also undeniably true that it's not as easy as it could be.  And that there are people (and people-populated institutions) who, for political and other reasons, deliberately want to make it harder.  Because we all know full well that the harder you make it, that tends to change the results (e.g., that it depresses the votes of minorities and other groups that tend to vote more for the Democratic as opposed to the Republican party).

So there are substantial incentives in at least one part of the electoral sphere to make it harder, not easier.  Even though, under a Rawlsian veil of ignorance, we'd all agree to make it easy.

Hence the tension for the judiciary.  The judiciary is limited by law.  We can't do something merely because we think it's a good idea.  Or strike down everything that's a bad idea.  That's not our job.

Yet when you've got a political system and state-sponsored electoral regime that deliberately tries to suppress (e.g., not count) votes of its citizens, what are you supposed to do?

So, to take just one part of the present case, you've got a state (Arizona) that does something (1) that has a huge effect compared to other states (the chart on page 78 of the opinion is indeed striking), and (2) that seems normatively like something we'd all agree we shouldn't do (at least if we didn't know which political party it benefits).  In this modern, computer-verified era, who the hell cares at which particular precinct you physically cast your ballot?  If you're validly registered and qualified to vote, why in the world would we care whether you exercise this right at the polling place that's one block to the right of your house as opposed to the polling place one block to the left?  The state has a list of all registered voters.  If you're on it, your vote should count.  If not, then not.  End of story.

To take but one example:  My designated polling place is (typically) two blocks from my house, in a church.  But that same church has two polling places; one immediately next to the other, one on the right door of the church, one on the left.  They've got different numbers, and I've got to make sure I go to the one with the correct number.

But who cares?  Say I accidentally walked into the wrong one and cast a ballot.  As long as the state can tell -- as it easily can -- that I'm in fact a properly registered voter, why would it refuse to count my vote just because I walked in the wrong door or accidentally transposed numbers?  Any neutral person would say:  "Yeah, that's a mistake, but we know he's entitled to vote, so let's let him.  It's an important right."  The only reason we don't (e.g., Arizona doesn't) is because we know full well how that will affect the votes on the merits.  And we're even (mostly) honest about that.  Political Party X wants to not count those votes because they're likely not for X, whereas Political Party Y deeply cares about counting them because they're likely for Y.  But we should all want to count them.  Because it's a critical part of democracy to get the input of our citizenry and count their votes.  It's a testament to where we are as a country that we nonetheless have serious fights about whether we should actually bother to count these votes, or instead look for an excuse -- and that's what it is, folks:  an excuse -- not to count them.

Are there legitimate reasons why one should prefer that people vote in their designated precincts?  Sure there are.  We don't want some precincts overwhelmed (with others empty), it's marginally easier to have a smaller list of registered voters than a larger list, etc.  But these are reasons at the margin.  If we actually cared about voting -- the most critical of our rights -- those reasons would indisputably give way when nonetheless presented with a vote that we knew full well was made by a qualified voter who wanted it counted.  That we don't -- that we instead go to great lengths (like Arizona does here) to make sure that we don't count those votes -- speaks volumes.

None of this is necessarily dispositive of where you come out in the fight between Judges Ikuta and Thomas.  As I said, one may have competing views about the role of the judiciary in the enforcement of these rights.  That's a larger jurisprudential debate.

But I think it nonetheless bears mention that we're in a world in which certain people deliberately want to make the exercise of critical constitutional liberties more difficult.  End voting at an earlier time.  Decrease the number of polling places.  Make lines longer.  Don't count votes mistakenly made at the wrong voting booth.

I can promise you that wouldn't make sense if you didn't know which way those practices tended to distort what's supposed to be a reflection of the will of the voters.  It's unfortunate that this reality is what's driving things here.  And that we (mostly) aren't even embarrassed about it.

Anyway, great (albeit lengthy) opinions on both sides.  Worth a read on the off chance you've got two hours to get through 'em.

Tuesday, September 11, 2018

Martinez v. Cate (9th Cir. - Sept. 11, 2018)

When you read legions of cases in the Ninth Circuit and California Court of Appeal, you tend to learn some street lingo, since portions of the transcript below are sometimes reproduced in the opinion.

For example, this opinion refers to someone allegedly saying that he "shot this fool, shot this scrap."  I've seen that before.  "Scrap" is a derogatory name (usually used by the Norteño gang) for someone in their rival gang, the Sureño.  So the speaker is saying that he shot a rival Sureño gang member.  Got it.

(Judge Tashima confirms my preexisting knowledge when he drops a footnote that says "'Scrap' may be a derogatory term for Sureño members."  But I must say that I thought that it was definitely a derogatory term.  Full stop.  So I bothered to look it up.  And reviewed some of the -- get this -- over 250 published opinions in California state and federal court which mention that, yeah, it's definitely a derogatory term.  So no surprise that I knew what it meant.  The judiciary's said it a ton of times.)

By contrast, there was another phrase in today's opinion that was new to me.  One person allegedly says:  "I’ll peel your guys’ cap back."  Now, I know that "cap" usually means "shoot".  But in this context, that doesn't work.  You're "peeling" the "cap" back.  Not "capping" a guy.  It's a noun here, not a verb.  So I couldn't necessarily figure out from first principles what it meant.

Though my default rule in all these settings is that whatever lingo means, it translates into "I'm going to shoot you."  As is indeed the case here.  Though I think it specifically means to shoot someone in the head.  I assume the reference is something akin to "scalping" someone with a knife, only this time with a bullet -- having the bullet "peel" the victim's "cap" (scalp) off.  Just a different way of making a particular threat.

Not nearly as common as the other phrase.  But now a part of my lingo.  "Gonna peel your cap."

Though I suspect I'll have few opportunities to use this newly acquired knowledge in my particular line of work.

Monday, September 10, 2018

Ioane v. Noll (9th Cir. - Sept. 10, 2018)

The Internal Revenue Service can do many things to you.  But the Ninth Circuit holds today that one thing it can't do -- or at least couldn't constitutionally do here -- is to watch you pee.  Even during a search warrant of your home.  Gotta let you squeeze the lemon on your own.

Good to know.


Brady v. Bayer Corp. (Cal. Ct. App. - Sept. 7, 2018)

Here's another wonderful opinion by Justice Bedsworth.

On the merits, he's very clear that he's going out on a limb.  He knows that two federal cases have dismissed the exact claims at issue here at the pleading stage.  But he thinks those cases are wrong.

And his opinion does an exceptionally fine job of explaining why.

I'll forthrightly concede that I'm a member of this putative class, which involves Bayer's "One-A-Day" gummy vitamins.  Notice that the very name says "One-A-Day".  But you've got to read the exceptionally small fine print to learn that "one-a-day" actually means "you gotta take two".

Hence the lawsuit.  Hence the Court of Appeal's reversal of the trial court's dismissal of the suit.

While we're in the habit of forthright admissions, let me make another.  I take two.  'Cause I read the thing and know you're supposed to.  Plus, what's the harm?  It's not like I'm taking 100 a day.  I figure I can use the extra vitamins anyway.  And I can probably afford the "double dose" -- even on a mere professor's salary -- anyway, on the off chance I'm actually taking more.

But Justice Bedsworth nonetheless seems right to me.  That some people might be like me doesn't necessarily mean that others don't rely on the label and, indeed, take on a day.  At the pleading stage, to be sure, I find it eminently plausible that some people are indeed confused by (and/or rely on) the prominent name and label "One-A-Day".

Now, given that different people may react differently, I do wonder whether Justice Bedsworth's opinion might serve to revive the case only to eventually kill it.  Because if he's right that people are different, then maybe this case can't be a class action.  I'm confident that Bayer's lawyers are going to use this reasoning at length in opposition to a motion to certify.  And if it isn't a class action, it's not anything at all; no one's going to sue individually over the $10 (or whatever) they lost on these things.

But, admittedly, that's for another day.  And on my end, I'm loathe to let companies get away with false advertising that effectively deceives a segment of the public merely because other members of the public smartly read the fine print.  But that might just be me.  People have strong views pro and con in this regard about class actions.

In any event, for now, the case survives.  And stands for the proposition that you can't call something one a day when you actually gotta double it up.

Thursday, September 06, 2018

Dent v. NFL (9th Cir. - Sept. 6, 2018)

Football fans (and there are many of them) will recognize the names on this caption.  Lead plaintiff Richard Dent is a famous football player who was a defensive end for the Chicago Bears, and was legendary (as well as feared on the field) in his time.  And the NFL is the National Football League.  Also somewhat well-known.

Mr. Dent is one of several named plaintiffs in a putative class action alleging that the National Football League "distributed controlled substances and prescription drugs to its players in violation of both state and federal laws, and that the manner in which these drugs were administered left the players with permanent injuries and chronic medical conditions."  If you know anything at all about the old-school NFL, you know that drug use -- particularly painkillers -- was indeed rampant.  So on the merits, there's some real problems for the NFL there.

But legally, the case is a very difficult one (IMHO) for the plaintiffs.  The NFL prevails in the district court on a motion to dismiss, with Judge Alsup of the Northern District finding the claims preempted by federal labor law (since there was a CBA that covered the players during this period).  But today, the Ninth Circuit reverses.  No preemption.  Plus a lot of language in the opinion that the plaintiffs in the case will find helpful on the merits.

The players are nonetheless a long way from victory here.  There are statute of limitations issues.  There are numerous issues on the merits.  Even the panel hints there may be problems with another motion to dismiss, or with a motion for a more definite statement, or at the summary judgment stage.  And, on my part, I'll add that I'm highly doubtful that this is going to actually get certified as a class, if only because the individual issues seem to me to predominate.

But for now, the lawsuit survives, and goes forward.


Wednesday, September 05, 2018

Powell v. Tagami (Cal. Ct. App. - Sept. 5, 2018)

Today brings us a rare amendment-to-an-amendment.  Because the original amendment contained a mistake.

Oopsies.

Important to get it right.  Even when it's as minor as saying (as here) that you meant to delete the third sentence, not the second sentence.

Let's hope this finally puts the matter to rest.  An amendment to an amendment to an amendment is par for the course in a legislature, but for the judiciary, is a place we rarely want to go.

Tuesday, September 04, 2018

Bridgepoint Construction Svcs v. Newton (Cal. Ct. App. - Sept. 4, 2018)

The month of September begins with a bang.  With holding that's perhaps even more significant than the Court of Appeal recognizes.

Justice Gilbert's opinion says:

"An attorney represents more than one client, all of whom seek damages from a pool of money controlled by another party. In addition to multiple other reasons why the attorney here should be disqualified, when more than one client is seeking funds from the same source, the conflict is self-evident. There might not be enough money to satisfy each client's claim.

This is an appeal from an order disqualifying an attorney for a conflict of interest. We affirm."

There are lots of situations in which multiple plaintiffs seek money from the same source.  And since few defendants have infinite resources, the resulting conflict -- which the Court of Appeal's opinion expressly calls an "actual" conflict, not merely a "potential one" -- will arise in a plethora of cases.  With the resulting disqualification motions for anyone who understands the strategic value of such motions and is armed with today's opinion.

Plus, to be clear, this isn't a case involving a particular res (e.g., a $2 million insurance policy).  The conflict exists merely because the clients are seeking money from the same defendant.  The opinion makes this crystal clear:  "What Klein ignores is that Bridgepoint, Salter and Ram are all seeking the same damages from the same $2 million pool. The conflict is obvious. Every dollar that Ram obtains from the pool is a dollar that is not available to Bridgepoint or Salter."  That idential "pool" of money exists whenever multiple plaintiffs are suing the same non-billionaire defendant.

So use today's opinion.  And understand that people may well use it against you as well.

Super important.  If only because its categorical holding is (1) incredibly broad, and (2) incredibly practically significant.  For lawyers and clients alike.

Thursday, August 30, 2018

Mack v. All Counties Trustee Service (Cal. Ct. App. - Aug. 30, 2018)

What a total appellate mess.  (Summarized in eight breezy pages, thankfully.)

People v. Rodriguez (Cal. Ct. App. - Aug. 29, 2018)

This is a very good -- and common sense -- disposition by Justice Smith.  I'm glad the Court of Appeal decided to publish it.

A prisoner who's in wrist restraint cuffs (or at least partially in wrist restraint cuffs) allegedly assaults a prison guard.  He's charged with assault by an inmate with a deadly weapon, but the trial court does not give instructions about the lesser included offense of simple assault.  He appeals his conviction by the jury on the greater (deadly weapon) charge.

Everyone (including the People) admits that assault is a lesser included offense.  But the People say an instruction on that lesser offense wasn't required because the jury couldn't have found him guilty of it.

Yet Justice Smith's response is spot on:

"We agree with Rodriguez’s view that the lesser included offense instruction was required here. The jury could reasonably find, based on the evidence, that Rodriguez assaulted Stephens and Dall, but did not use the chains or anything else as a deadly weapon. Some items, such as dirks and blackjacks, are deadly weapons as a matter of law; but most objects are not inherently deadly and can be found to be deadly weapons only if used in a manner and under circumstances likely to produce death or great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1029.) The evidence would have supported a finding that Rodriguez assaulted Stephens and Dall, but that there was a reasonable doubt regarding whether he used the chains as a deadly weapon, or used them at all, in doing so. The jurors could reasonably have believed Rodriguez was exaggerating the innocence of his intentions when he indicated he merely collided with Stephens by accident, while at the same time finding he was not employing the chains as a weapon. They could reasonably have believed Rodriguez’s testimony that the chains were always secured around his waist during the incident. The video would be consistent with these findings, as would the absence of medical evidence and Stephens’s concession that the photograph of his head showed no injury. Jurors could reasonably find that Rodriguez was just using his hands with the cuffs on his wrists, and that even if Rodriguez caused the chains to make contact with Stephens (and caused them to swing toward Dall), there was a reasonable doubt he used them in a manner likely to produce great bodily injury.

The error was not harmless. Failure to give a required instruction warrants reversal when there is a reasonable probability that the defendant would have obtained a more favorable outcome if it had been given. (Breverman, supra, 19 Cal.4th at p. 178.) Under the instructions given, the jury was forced to choose between assault with a deadly weapon and no assault at all. In light of the video and the other evidence, it is fair to say no assault at all is the less likely of the two, even though both are reconcilable with the evidence. There is a reasonable probability that the jury chose assault with a deadly weapon just to avoid the more implausible alternative, and would have found simple assault if that had been an option.

The People contend that the evidence was insufficient to support a finding of simple assault because Rodriguez in his testimony and defense counsel in his closing argument both maintained that there was no assault at all; consequently, the jury’s choice was between believing the prosecution witnesses and finding assault with a deadly weapon and believing Rodriguez and acquitting him on these counts. It is not true, however, that the jury was limited to choosing between the competing theories of the case proposed by the attorneys, or between the conflicting accounts given by the two sides’ witnesses. It is well established that the jury is entitled to form its own theory of the case, if supported by the evidence, and to pick and choose the parts of each witness’s testimony that it finds credible, provided there is substantial evidence in support of the view it decides to take. (Breverman, supra, 19 Cal.4th at pp. 157, 159-160, 162-163; People v. Chestra (2017) 9 Cal.App.5th 1116, 1121.) As we have said, the jury in this case could reasonably do all of the following: (1) believe the prosecution witnesses’ testimony that Rodriguez attacked them; (2) reject the prosecution witnesses’ testimony that Rodriguez wrapped the chains around his fists and used them to deliver, and try to deliver, forceful punches; (3) believe Rodriguez’s testimony that the chains were secured around his waist and he never used them as a weapon; (4) reject Rodriguez’s testimony that he never meant to make contact with anyone. In short, a finding that all the eyewitnesses were exaggerating or minimizing the facts would have been consistent with the evidence. There are, of course, cases in which a lesser included offense instruction is not required because there is nothing in the defense case (or otherwise) that would have supported a guilty verdict on the lesser offense but not the greater. But this is not such a case."

Seems exactly, exactly right to me.

Plus, I liked that Justice Smith drops a footnote that explains in concrete terms why all this matters (wholly beyond the legal requirement that the jury be instructed on lesser offenses).  Here, it's a very big deal:

"The difference between simple assault and assault with a deadly weapon by a prisoner was a matter of grave significance to Rodriguez. For a second striker, the maximum prison sentence for assault with a deadly weapon by a prisoner is the sentence Rodriguez received: Twelve years. Simple assault is a misdemeanor with a maximum jail term of six months. (§ 240.) Simple assault on a peace officer is also a misdemeanor, with a maximum jail term of one year. (§ 241.) The impact on punishment is, of course, not a factor in the analysis of whether a lesser included offense instruction was required, but it would have been an important consideration had it been necessary to analyze the effectiveness of trial counsel."

You can see why a jury might have wanted to convict Rodriguez of something since it was fairly clear he hit the guard.  But you can also see why forcing the jury to choose between a very huge offense or nothing would be a suboptimal decision tree when in fact there's something in the middle that might describe (and set a punishment for) what actually transpired.

Plus, as an aside, you gotta love footnote four.  Where Judge Smith invents a lengthy hypothetical closing argument of the defense counsel that improperly vouches for his own client, and does so in order to demonstrate the impropriety of vouching based upon facts outside the record.  Rarely have I seen a justice channel his or her inner defense attorney in such a manner.  Maybe never.  Classic.

Wednesday, August 29, 2018

People v. Martin (Cal. Ct. App. - Aug. 29, 2018)

My presumptive rule is that any opinion entitled "People v. Martin" requires careful review.  And today's opinion only reaffirms this general principle.

The majority and dissenting opinions demonstrate sharply the ideological clash that underlies the competing views.

On the one hand, you have Justice Yegan's majority opinion.  His very first paragraph tells you how strongly he feels about the right way the case should come out:

"The fabric of the law will stretch only so far before it will unravel. Here, a professional thief entered in to an international conspiracy to commit as many petty thefts as she could get away with. She was foiled by security guards and the police. She seeks to stretch Proposition 47 to cover her conspiracy to commit petty theft. She convinced the trial court. But it just won’t stretch that far. It is difficult, if not impossible, to believe that the electorate intended that a person, such as respondent, with five prior separate prison terms who joined an international conspiracy to commit petty theft, would deserve misdemeanor treatment. To say it out loud or put it on paper causes considerable pause."

Wow.  An international conspiracy, eh?  Pretty sophisticated and dangerous, I assume.  I can see why it seems so crazy to think we might knock something that fancy down to a misdemeanor.

Though then you read the actual facts of the case.  Which involve totally run-of-the-mill shoplifting.  Some women go into Wal-Mart, look around nervously, puts some cosmetics in their purse, and walk out without paying.  They do the same basic things in an Albertsons.  So they're convicted.

Oooh!  What danger!  What sophistication!

The only wrinkle that makes this an "international conspiracy" is that the women say they send the cosmetics down to someone in Guatemala who pays 'em twenty cents on the dollar for everything they steal.  By the way, as the majority opinion reflects, the "international" part of the case has totally nothing to do with the holding.  Which is that any "conspiracy" -- domestic or not -- can't be reduced down to a misdemeanor under Prop. 47.

Justice Tangeman dissents.  His reasoning is summed up in his opening paragraphs as well.  In which he says:

"I dissent. I would affirm the order granting respondent’s petition to recall her felony sentence and resentence her to misdemeanor shoplifting. Generally it is proper to charge felony conspiracy even if the underlying conduct is a misdemeanor. [Cite] But this general rule is “subject to an exception in the case law which precludes the use of a conspiracy charge to elevate criminal conduct to felony status where there appears an ‘affirmative legislative intent’ to impose a lesser punishment or no punishment at all.” [Cite] Proposition 47 evinces an affirmative electoral intent to impose a lesser punishment for any conduct that could be charged as shoplifting. [Cite] The Supreme Court has not yet decided whether the ameliorative benefits of Penal Code sections 459.5 and 1170.18 apply to acts of shoplifting by two or more people acting together. Two intermediate courts have reached opposite conclusions. In People v. Huerta (2016) 3 Cal.App.5th 539 (Huerta), the court concluded that conspiracy may not be charged where the defendant enters a commercial establishment during regular business hours with the intent to commit petty theft; while in People v. Segura (2015) 239 Cal.App.4th 1282 (Segura), the court concluded otherwise.

The Supreme Court has disapproved Segura’s reasoning. (Maj. opn. ante, at p. 7.) Huerta’s reasoning is sound. In Huerta, the People argued that a defendant was ineligible for Proposition 47 relief because she “‘went in with another accomplice and they did this together’ so ‘[i]t’s an uncharged conspiracy.’” (Huerta, supra, 3 Cal.App.5th at p. 542.) The court rejected this argument based on the language of section 459.5: “The People’s argument raises the question, conspiracy to do what? They answer the uncharged conspiracy was a conspiracy to commit larceny. They argue intent to commit conspiracy is not shoplifting, and burglary predicated on such a conspiracy may be charged as a felony even after the electorate enacted Proposition 47. That may be true for some forms of conspiracy. It is not true, however, for conspiracy to commit larceny. If Huerta harbored the intent to conspire to commit larceny, she necessarily harbored the intent to commit larceny as well . . . [and] [i]f Huerta harbored the intent to commit larceny, [section 459.5, subdivision (b)] directs the offense ‘shall be charged as shoplifting’ and further that ‘[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property.’ [Citation.]” (Id. at p. 545.)"

Justice Yegan asserts that "Proposition 47 is poorly drafted" and that "[t]he plethora of case law concerning its construction is a testament to its vagueness," but asserts that "there is no vagueness here" and that the proper answer is clear.  There's no way, he says, that the electorate that voted for Proposition 47 would want someone who "conspired" to commit shoplifting to be sentenced to a misdemeanor.

Now, as a factual matter, I can assure you that's flatly untrue.  Plenty of people who voted for Prop. 47 assuredly would want precisely that, and would not agree that merely because you worked with another person to shove some cosmetics into your purse you're automatically a hard core criminal who should be categorically unable to petition under Prop. 47.

That said, the relevant inquiry is whether that's what the statute says and/or that's what was in general intended by those who voted for it.  And on that point, as the case law reflects, there's a conflict, and one that generally reflects preexisting beliefs.  If you're someone who things that conspiracies are by their very nature more dangerous, and that shoplifting is a serious crime, then you're not going to be predisposed to allow people convicted of such a crime to even petition under Prop. 47. Whereas if you're less confident in those beliefs, as well as a bit worried that prosecutors may sometimes charge conspiracy just to a felony conviction (even if the conspiracy is, as here, to commit petty theft) and -- after today's opinion, anyway -- to also avoid Prop. 47, then you're probably going to be predisposed to go the other way, and let 'em at least file a petition.

People often say that bad cases make bad law.  This is a "bad" case; or, put differently, it's a tolerably "good" one in which Justice Yegan can articulate his vision.  The defendant does indeed steal for a living, and is a recidivist.  There's more than one person involved.  It has an international component to it.  So it's not your "usual" shoplifting case.  Plenty of people might feel like the person here should be punished fairly harshly.

At the same time, the rule that the majority articulates is far broader.  It's not just Ms. Martin who gets a felony conviction for petty theft that she can't reduced notwithstanding Prop. 47.  It's also two kids who go into a grocery store and slip a pack of gum (or liquor bottle) into their pockets.  The rule here applies to ANY felony conspiracy conviction.  'Cause, as Justice Yegan notes, that's a (1) "different" crime, that's (2) ostensibly inherently more dangerous.  Hence Prop. 47 doesn't apply.  Even, again, to a pack of gum (or some Wal-Mart cosmetics).

Ultimately the California Supreme Court will have to resolve this split.  There are definitely two competing visions in play.  One of which is amply demonstrated by the opening paragraph of today's opinion, which essentially asserts that anyone with any sense couldn't possibly think that Prop. 47 would apply when two people are in on the petty theft at issue.

But someone could, in fact, take a quite different view.

Even people whose last name is not "Martin."

Monday, August 27, 2018

Kim v. Toyota Motor Corp. (Cal. Supreme Court - Aug. 27, 2018)

It's just so awesome when the opinion can (and does) summarize itself in a couple of concise paragraphs at the very outset.  That way, we can totally ignore the rest of the thing unless we're profoundly interested.  (Now, personally, I'm always profoundly interested, but I get that I'm an outlier on this score.)

So unless you're uniquely fascinated by the issue, the first two paragraphs of Justice Kruger's opinion today ostensibly tell you everything you need to know:

"Plaintiff William Jae Kim (Kim) was severely injured after he lost control of his Toyota Tundra pickup truck and drove off an embankment. Together with his wife, Kim brought this strict products liability suit against defendant Toyota Motor Corporation and related entities (collectively, “Toyota”), claiming that the pickup truck was defective because its standard configuration did not include a particular safety feature, known as vehicle stability control (“VSC”), they claim would have prevented the accident. At trial, the jury heard evidence that no vehicle manufacturer at the time included VSC as standard equipment in pickup trucks. The jury ultimately found in Toyota’s favor and the Court of Appeal affirmed.

The question before us is whether, as the courts below held, this kind of evidence of industry custom and practice may be introduced in a strict products liability action. The answer depends on the purpose for which the evidence is offered. Evidence that a manufacturer’s design conforms with industry custom and practice is not relevant, and therefore not admissible, to show that the manufacturer acted reasonably in adopting a challenged design and therefore cannot be held liable; under strict products liability law, a product may contain precisely the same safety features as other products on the market and still be defective. But even though evidence of industry custom and practice cannot be dispositive of the issue, it may nevertheless be relevant to the strict products liability inquiry, including the jury’s evaluation of whether the product is as safely designed as it should be, considering the feasibility and cost of alternative designs. Because the evidence in this case was properly admitted for that limited purpose, we affirm the judgment of the Court of Appeal."

Beautiful, eh?

Now, the observant amongst you will notice that I said that these two paragraphs "ostensibly" tell you everything you need to know.  Justice Dato, sitting by assignment from the 4/1 (and until recently a Superior Court judge down here in San Diego), files a concurring opinion -- joined by Justice Liu -- that focuses precisely on that caveat.  He says:

"The answer you receive often depends on how you ask the question. Here, the majority opinion broadly frames the issue before the court as whether industry custom-and-practice evidence may be introduced in a strict products liability action. The answer, we learn, “depends on the purpose for which the evidence is offered.” (Maj. opn. ante, at pp. 1−2.) As a statement of principle, this conclusion is unassailable, if a bit opaque. The devil is in the details, and the critical question becomes for what purposes is such evidence admissible, and for what purposes is it not?"

The rest of the concurrence then goes on to discuss those pesky details, and the way the two camps frame the inquiry is (not surprisingly) a bit different.

The end result is nonetheless clear.  This stuff is admissible in a ton of cases.  It'll just require a limiting instruction, as well as care to make sure it's in fact relevant to the defenses the parties have actually made.  (Though I'll also promise you that the defendant in these cases will invariably assert a defense that makes this stuff relevant.  'Cause they'll -- smartly -- be desperate to get this evidence in.  Instruction or no.)

Thursday, August 23, 2018

People v. Corder (Cal. Ct. App. - Aug. 23, 2018)

Just because you're evading the police on your own piece of land -- driving like a bat out of hell thereupon -- doesn't mean you're not guilty of evading the police.

So holds the Court of Appeal.

Wednesday, August 22, 2018

Davidson v. Holman (Cal. Ct. App. - Aug. 22, 2018)

Three cheers for Judge Thomas Cahraman, who's on the probate court in Riverside County.  I'm extraordinarily impressed by his initiative, effort, and even-handed justice in this case.

Judge Cahraman gets a routine probate petition filed by Christine Davidson, who was the court-appointed conservator for a particular disabled person.  I'm sure the probate courts gets a million of these every year.  They're perfunctory, and generally just get approved.  Much like Davidson's prior petitions had been routinely approved.

But Judge Cahraman takes his job seriously.  He looks over the petition, in which Ms. Davidson is seeking conservator’s fees of $12,621.60 for work over a six-year period.  Given the relatively small amount of fees and the detailed bills that Davidson submitted, any judge would be forgiven if he just essentially rubber stamped the thing.

But Judge Cahraman examines the bills and notices some stuff that bothers him.  Rightly so.  To take an example from the opinion:

"The probate court said, “Page 17 of Ms. Davidson’s bill, ‘Received, reviewed, and filed. Notice of changes from Security Bank, re in form of changes in bank fees, terms, and effective date, two-tenths of an hour at $60 an hour, $12.’ [¶] Well, in reading billings like this, the Court doesn’t want to be petty or feel petty, but we all get that little slip of paper once in a while from the bank that says, ‘We have exciting new changes to the terms of your account.’ And then you look at it and what they have done is increased the punishment for a bounced check from $20 to $22. We all glance at those papers and we throw them away. Why this estate has to pay $12 for glancing at that and throwing it away is a big question.”

The probate court went on to question why fees were being charged for confirming that a bank statement went to the correct mailing address when it was clear Davidson received the bank statement. The court questioned why Davidson charged for meeting with a financial advisor to discuss how laws related to the “Affordable Care Act” taxes would affect her clients. The court explained that it is beneficial to be educated, but that is not the type of activity that should be billed to a client. The court said, “I wonder if this appears in 30 clients’ billings or a hundred clients’ billing[s].” The court said, “I worry about this. It’s a hypothesis that makes me worry. I’m not sure that there’s something going on. I’m not sure, but it’s concerning when you read this.”

The court questioned Davidson’s charge for 24 minutes for taking a check to the bank. The court asked, “Is that the only check she took the bank? Or did she take a hundred checks from a hundred clients? In which case, it was four hours billed if you add them all up, and did it take four hours to go to the bank? Or did she do the foolishness of taking this [one] check[?]”"

Faced with these issues, Judge Cahraman sets a hearing and gives Davidson the opportunity to explain things.  To which Davidson responds by defensively saying that the court's essentially not empowered to even question her bills since her charges in those other cases have already been rubber stamped by other judges in other cases.  But Judge Cahraman responds -- totally correctly -- that he's got the power to assess whether fees should be paid in this case by looking at other bills to see if she's billing the exact same thing to a plethora of different clients.

So Judge Cahraman gets his staff to dig a little deeper into the issue, and what does he find?

"The court said, “And so we studied 15 cases of Ms. Davidson in San Bernardino and Riverside counties. And, for instance, the telephone call of September 6th, 2013, there were eight disabled people in eight separate cases billed two-tenths of an hour for receiving telephone calls from representatives from Security Bank . . . ; so 1.6 hours [were] billed if you count all of these disabled people for that call. [¶] Now, it may be that six different offices of Security Bank were used or eight different offices were used and it was eight different phone calls. I don’t know.”

The probate court pointed to a similar issue with a charge for traveling to Security Bank and meeting with a manager. Eight clients were billed for a total of 3.6 hours. The court explained it was possible the meeting and travel lasted 3.6 hours, so each client was billed proportionally, but the court was uncertain. The court explained, “And it goes on and on like this.” The court cited a conference call that was billed to eight clients for a total of 1.8 hours, another bank meeting that was billed for a total of 5.4 hours, and a telephone call that was billed to 10 clients for a total of two hours.

The court said, “But once we did this study, it seemed like something might be deeply wrong.” The court continued, “[W]hen we studied 15 cases and it looks very much like there’s redundant billing of eight different people who are absolutely helpless [and/or] incompetent, that one phone call seems to have been made that two-tenths of an hour and eight different people got charged for it, if that’s not what happened I really am going to want to know. [¶] . . . I’m really hoping there’s some other explanation. But tentatively it looks pretty bad.”"

So Judge Cahraman gives Davidson another opportunity to respond.  At that January 2016 hearing, he essentially asks Davidson's attorney whether Davidson wants to explain whether she's really been double- (or more) billing the same charges to multiple clients.  For example, "the court said it would like to know, for the aggregate 8.4 hours that were billed for a conference with a banker, how many hours Davidson would testify she spent at the bank and traveling for the conference. The court asked Horspool [Davidson's attorney], “Do you want her to tell me that, or do you want me to reach my own conclusions based on what I have?”  To which Davidson's attorney responded "Your Honor, she really doesn’t have anything more to say,” and that was that.

So Judge Cahraman reduces he requested fee, from $12,600 to $7,000.  Still a hefty fee.  At which point Davidson appeals.  And the Court of Appeal entirely properly affirms.

It's not an appeal I would have taken were I in Davidson's position.  Not only did the trial court get it totally right, in my view, but the resulting publication of the opinion is bad press the value of which far exceeds the roughly $5,000 in fees she didn't receive (and still didn't receive after the opinion).

Plus there's the time, effort and fees expended on appeal.

Regardless of the wisdom of the appeal, I was heartened to see judges taking real initiative and doing hard work, essentially sua sponte, to ensure that attorneys don't overbill in probate petitions.  So easy to just do the same thing as everyone else.  Much harder to actually drill down on this stuff and make sure no one's getting ripped off.

Kudos.

Tuesday, August 21, 2018

U.S. v. Schram (9th Cir. - Aug. 21, 2018)

This is not a close case.

You could make various policy and doctrinal arguments as to whether the police should be able to search a home without a warrant (and not get the resulting evidence suppressed) merely because the person they were investigating was -- with the co-occupant's consent -- living there in violation of a no-contact order.  For example, personally I'm a fan of warrants before the police invade a home.

But there's a ton of precedent that makes it clear that you don't have standing to challenge a search when you're not permitted to be there.  (For example, you're a trespasser.)  From the reasoning of those cases, it's fairly clear that you don't have standing to contest a search in cases like the one here.

So right or wrong, that's what the law presently entails.  Hence the Ninth Circuit's correct holding today.

Monday, August 20, 2018

In re D.B. (Cal. Ct. App. - Aug. 20, 2018)

The injuries in this case (from San Diego) are fairly extreme; for example, the six-year old kid here was sent to school limping, with blood seeping through his jeans.  That's not the result of your typical spanking with a belt.

The disposition of the case -- taking the children away from their parents -- nonetheless highlights the danger of imposing any non-trivial amount of corporal punishment on your children.  Because courts in California (or, at a minimum, here in San Diego) are not particularly fond of the practice.

To say the least.

Even when the parents demonstrate progress and promise to never, ever do it again, they may still lose their kids.

Friday, August 17, 2018

In Re J.W. (Cal. Ct. App. - Aug. 16, 2018)

To achieve the desired result, you might well have to abstract away the underlying facts that brought the case to the attention of the authorities and/or the Court of Appeal.  But if you do so, the way this opinion ends may put the world in a slightly more positive (or at least optimistic) light.

Perhaps even provide a nice way to end the week and transition to the weekend.

Justice Yegan ends the opinion -- which keeps the relevant child with his fost-adopt parents -- by saying:

"We reject the notion that a child suffering from Reactive Attachment Disorder is unadoptable. Very few children in the dependency system are without problems. To deny J.W. the chance to permanently become a member of the family that loves him and that he loves, simply because he has special needs, would derail the entire concept of permanent planning. The evidence shows that the placement is working and that J.W. is adoptable. In the words of the trial judge, “I have rarely seen a proposed adoptive situation that was as beneficial to a child as this one. . . . I have very little question in my mind about the adoptability.”

This is not a close case. Substantial evidence supports the trial court’s finding, that continuing the parent-child relationship does not outweigh the permanency and stability of an adoptive placement that J.W. so badly needs."

(Perhaps) a bad result for the biological parent.  But good for the child.  As well as the world.

Good news.  For a change.

Pease v. Zapf (Cal. Ct. App. - Aug. 17, 2018)

I thought I recognized those names in the caption.  The respondent (Zapf) is my city councilmember and the petitioner (Pease) is one of her opponents in the last election.  Indeed, it's a case about that election, one in which I dutifully voted.

So I definitely have to read the thing, right?

I clearly need to read the local newspaper more, since it's about a dispute that I didn't even know existed.  Basically, Lorie Zapf lives in a part of San Diego that got redistricted, so although she previously represented District 6, after redistricting, she represented District 2.  Now she's running again for District 2, and in the most recent primary, was one of the "top two" candidates with the most votes, so she moves on.

Petitioner, Bryan Pease, was No. 3.  So he's out.

Except for one thing.  Pease says that Zapf is ineligible to run.  Why, you might ask?  Because, he says, she's termed out.  She's already served two terms as a city councilmember, so this would be her third.

But Zapf has a pretty good response.  She says that the relevant provision of the San Diego City Charter (approved by the voters in a prior election) says that "no person shall serve more than two consecutive four-year terms as a Council member from any particular district."  Sure, she served one previous term from District 2, but before that, she was in District 6.  So only once from District 2, which is the "particular" district she's now running to (continue to) represent.

Now, normally, I gotta tell you, that seems obviously right.  She was 6 before, but now she's 2.  "From any particular district" has to mean something, and in this context, is clearly means that you're not termed out if you were in 6, then went to 2.  That's still only one prior term "from any particular" district; e.g., the one (2) you're running for now.

But Pease ain't finished.  He makes a pretty creative argument.  One that I totally didn't even know about before reading the opinion.  Apparently the San Diego City Charter provision said at the time of the prior redistricting that "Upon any redistricting pursuant to the provisions of this Charter, incumbent Council members will continue to represent the district in which they reside, unless as a result of such redistricting more than one incumbent Council member resides within any one district, in which case the City Council may determine by lot which Council member shall represent each district."  Which is weird, because I don't remember anything about drawing lots at the time, or saw that happen.  Anyway, Pease says that since the City Charter says that the councilmember "continues to represent the district in which [she] reside[s]," and since immediately after redistricting Zapf now lived in District 2 (even though she now represented District 6), she "counts" as representing District 2.  Hence 2 then, another 2 after, and this would be her third consecutive 2.

Did I mention that Pease is an attorney?  Who represents himself (in part) in this petition.

Now, Zapf isn't finished either.  Far from it.  She's got a darn good rejoinder.  Saying that if she was (after redistricting) really representing District 2 (where she lived), then that meant that there were two people representing 2 and no one representing 6, which makes no sense.

Which the Court of Appeal basically agrees with.  She was representing 6, they shifted the boundaries, but regardless of what the City Charter says, she basically continued to represent 6 (despite the fact she was no longer living there) throughout the remainder of her term.  End of story.  So she's not termed out.  Election can continue with the two highest vote-getters, including Zapf (and not Pease).

Which is probably how you'd want the thing to come out anyway.  It'd really screw things up if we decided to switch things around after the primary election already took place.  What are we supposed to do; just let Nos. 2 and 3 move on to the general election, making all the votes for No. 1 totally meaningless?  Crazy.  (I agree with the Court of Appeal that Pease isn't barred by laches by waiting until after the election to assert his challenge, since there's an express procedure that allows exactly that.  But still; my gut tells me that the fact that we're tinkering with an election result -- and in a very messy way, at that -- if Pease's challenge is granted nonetheless has an effect on what we our predisposition is as to the hopeful outcome of the dispute.)

Now, admittedly, we should have probably thought about all of this when we wrote the term limits and the redistricting initiatives in the first place.  Because, at least in retrospect, it was totally easy to foresee that something like this would happen -- a sitting councilmember getting her district moved, with the resulting term limit implications.

But hindsight's always 20/20.

Anyway, the case gets resolved.  It's Lorie Zapf and her competitor, Dr. Jen Campbell, in the general election in November.  One of 'em gets to represent the constituents of San Diego City Council District No 2.  Whose members include, inter alia, at least one occasionally loquacious guy who reads a lot of appellate cases in California.

P.S. - Lorie lives just down the street from the University of San Diego, and (obviously) not too far from my residence.  I met her competitor, Dr. Campbell, when she came door-to-door to my home one afternoon.  Zapf may have to step it up a bit if she wants to continue to remain the incumbent.

Wednesday, August 15, 2018

In Re Complaint of Judicial Misconduct (9th Cir. - Aug. 15, 2018)

I believe that for some time now, the Ninth Circuit has published its disposition of all allegations of judicial misconduct.  I understand (and applaud) the sentiment behind that decision.  Shine the light on potential misconduct, make everyone confident that justice is being fairly dispensed, etc.  Great.

But let me make a proposed amendment to the de facto principle of publication.  One that makes a fair piece of sense (at least to me) and also may a couple of trees from needless early demise.

Today's opinion holds (among other things) that the judges don't have to recuse themselves from an adjudication if all of 'em are being sued and the underlying allegations are, as here, frivolous.  A rule that totally makes sense.

I'd adopt a related amendment to the underlying publication rule.  Let's not publish the disposition if the misconduct allegations are similarly, as here, totally and obviously frivolous.

We'll still post the disposition on the web.  So we'll waste some pixels.  But we won't deem the thing worthy of inclusion into a paper record designed to last centuries.

'Cause some things are just to patently silly that even though they merit a response, there's no need to put actual ink to physical paper.

Like here.


Amir v. Superior Court (App. Div. Sup. Ct. - Aug. 14, 2018)

Nearly every time the Appellate Division of the Superior Court decides to publish an opinion, it's one worth reading.  If only for its potential practical significance.

This one is no exception.

It's about that most basic involvement with the criminal justice system:  a traffic ticket.  And, most critically, a potential way out of one.

The basic holding is one that we should commit to memory.  Because it may well come in handy one of these days:

If you get a ticket in a faraway place (e.g., as here, in Lancaster), ask to have the underlying case heard in the county seat (e.g., here, downtown Los Angeles).  Because the Appellate Division holds that the trial court is required to accede to such a request.

Why would you care?  What's the benefit?

Twofold.

First, it may well be closer to your residence, and hence more convenient for you.  For example, here, Lancaster (where the guy was ticketed) was 70 miles away from his home, but the Downtown L.A. courthouse was only 2 miles away.  Definitely an easier drive to fight the ticket.

But the second reason's even more important.

Where do you think the officer who wrote the ticket likely lives and works?  Probably near the place s/he wrote the ticket, right?  70 miles away.  It's a silly little ticket.  Do you think the officer is really going to make an 140 mile round trip just to show up at the hearing?

Maybe.  But probably not.  Thus permitting your victory at trial.

Neat little trick.

And, after this opinion, one that likely will totally work.

The Appellate Division doesn't discuss the practical implications of the ruling.  But I think they're nonetheless reasonably clear.

Fight the thing on your home turf.  You'll be glad you did.

For so many reasons.

Tuesday, August 14, 2018

Lanuza v. Love (9th Cir. - Aug. 14, 2018)

"During the master calendar hearing, ICE Assistant Chief Counsel Jonathan Love (“Love”) stated that Lanuza’s immigration file contained an I-826 form, signed by Lanuza, accepting voluntary departure to Mexico in 2000."  That would make Lanuza ineligible for relief from deportation.

Which works.  Except for one thing.  The document was a forgery.  (Among other things, the top of the purported 2000 document referred to the "U.S. Department of Homeland Security," which didn't even exist until after the terrorist attacks on 9/11/2001.)  Even worse, apparently, Mr. Love knew it was a forgery.

I can't fathom what would make an attorney for ICE deliberately submit a forged document (or forge it himself) with the intent to deport someone.  Neither did the judge who ultimately sentenced Mr. Love to (a very brief stay in) prison.  Why would anyone fake a document just to get someone they don't even know deported?

Regardless, the Ninth Circuit holds today that there's a Bivens remedy for this situation.  If you forge a document in a deliberate effort to get someone deported, the person gets to sue you.

Thursday, August 09, 2018

People v. Rodriguez (Cal. Ct. App. - Aug. 8, 2018)

This opinion just goes to demonstrate how utterly absurd the California crime of "burglary" has become.

There's no doubt that the defendant was guilty of a variety of crimes.  He was 41 years old and had intercourse with a 16-year old.  That constitutes a variety of unlawful sex acts, and he was rightly convicted of those offenses.

But the Court of Appeal holds that he was also properly convicted of burglary because he took the minor back to a hotel room that he had rented.  Even though it was his hotel room, that he had rented, and to which he had a clear possessory right, he's guilty of "burglary" because he entered a location to which someone else had vestigal rights with the intent to commit a felony.

That's rediculous.

Is it a deliberate twisting of precedent?  No.  Sadly, it's not.  It's just another step in the continuously bizarre and counterintuitive expansion of "burglary" so that it's an additional offense in any case in which someone comes near any type of building.  Totally unnecessary, and I'm confident not what the public or Legislature expected when they passed the statute.

Plus, the Court of Appeal struggles mightily to explain why you can be guilty of "burglarizing" your own hotel but not "burglarizing" your own home (unless you have a roommate!) or "burglarizing" your own apartment; especially in the latter case, since a landlord has similar residual possessory rights to those of a hotelier.  Sure, there's a quantitative difference -- it's easier to kick someone out of a hotel than an apartment -- but not a qualitative one.  If those residual rights make it a burglary to enter your own hotel room, then the same should be true for entering your own apartment (or perhaps your own home, since your lender has residual rights too).  But people would get upset about that concept, so we don't want to stretch it that far.  At least now.  (Maybe in the next statutory rape case we'll go ahead and do it.)

I accept that burglary in California entails entering someone else's property with the intent to commit any felony therein.  (That's not what I'd define the offense to be were I writing the underlying law, but so be it.)  But once we start convicting people for entering their own hotel room or apartment or other structures that they have an undiluted right to enter, we go too far.  Way too far.  There are plenty of felonies out there.  Once you can be convicted of burglary for entering your own residence or place of rest with the mere intent to commit a crime, we're way too far afield.

Including but not limited to the present case.

Wednesday, August 08, 2018

U.S. v. Fomichev (9th Cir. - Aug. 8, 2018)

Hmmm.  Don't know about this one.

I'm definitely on board for the marital communications privilege.  What you say to your spouse during the marriage should be confidential.  For good reason.  We want spouses to talk to each other without being worried that the information you reveal may be used against you.  On it.

But what if the marriage is a sham?  One you entered into solely to get various benefits; say, tax benefits, or (as here) an immigration visa.  Should the privilege apply then?

My initial impression is the same as the government's:  No.  The marriage was a sham.  There was no "real" intimate relationship that we're trying to protect.  The Ninth Circuit holds that it'd be a bad idea to create a "sham marriage" exception to the privilege, so refuses to do so.  I'm not so sure.  Seems to me that if the marriage is indeed a sham, the underlying basis for the privilege is vitiated.  At that point, you're talking about protecting communications between, essentially, strangers.  Or at least no more subject to privilege than boyfriends and girlfriends, people who sleep together, close friends, etc.  None of whom have a privilege.  Ditto for people in sham marriages, it seems to me.

Now, admittedly, there are some line-drawing problems.  People do get into marriages for a number of different reasons.  The Ninth Circuit is understandably a little worried about having to figure out what marriages are intimate "enough" to justify the privilege.

But two responses seem right to me.  First, we already have a "sham marriage" exception for the marital testimonial privilege -- i.e., the right not to testify against your spouse.  So we already draw that line, and appropriately so.  If we can do it there -- if we can say, for example, that we're not willing to let you refuse to testify against your (typically new) spouse because we know full well that you only married him to avoid testifying -- then I see no reason why we can't do it here.  Second, the line-drawing argument only seems to me to justify a pretty hefty burden on establishing the exception.  But when, as here, there's tons of evidence that the marriage was indeed a sham, the difficulty of determining precisely when a marriage becomes "fake" (for money, prestige, celebrity, etc. instead of for love) doesn't really apply.  E.g., I may not be able to precisely define how many hairs makes a beard instead of a clean-shaven face, but I can nonetheless say with confidence that the guys from ZZ Top definitely have beards.  Ditto for sham marriages, at least at the extreme.  Line-drawing not a problem.  Or at least not a terminal one in this setting.

One other point.  The Ninth Circuit also recognizes that a different exception already exists, and one that is also potentially applicable here.  The marital communication privilege doesn't apply when the marriage was already "irreconcilable" at the time the underlying statements was made.  Indeed, the Ninth Circuit remands on this precise point so that the district judge can decide whether that other exception applies.

But whoa!  If we can decide the totally-not-bright-line of when a marriage is "irreconcilably" broken, it seems totally possible -- easier, even -- to decide when that same marriage is a "sham" from its very outset.  Plus, isn't there dispositive overlap there?  'Cause I can definitely think of one setting in which I might well call a marriage irreconcilably broken:  when it was and remains a total sham.

Look, I don't like prying into reasons for someone's marriage.  But when we're already doing that -- when, as here, we're seeing if they committed fraud by entering into a fake marriage for immigration purposes -- seems to me it's similarly fine from an evidentiary perspective to see if the marriage is a fake and respond accordingly.  Because fake marriages don't deserve a truth-defeating privilege.

And, yeah, if that means that we eventually run the risk of having to figure out whether, say, 26-year old Anna Nicole Smith's marriage to her 89-year old billionaire husband Howard Marshall was also a "sham" -- well, we can cross that bridge when we come to it.

Tuesday, August 07, 2018

Gold Medal LLC v. USA Track & Field (9th Cir. - Aug. 7, 2018)

I thought this opinion was going to be unanimous.  And it was.  Sort of.

Run Gum manufactures a “compressed functional chewing gum” that contains “a proprietary mix of caffeine, taurine, and b vitamins.”  It want to advertise its products on the sportswear of the track and field athletes in the Olympic Trials.  Stunningly, the Olympic Committee won't let it.  So it sues.

There is some advertising at the Olympics.  Very little, but some.  At least on the sportswear.  The manufacturers of the actual products (e.g., Nike) get to put their mark on the products.  But that's it.

But Run Gun wants to open the floodgates.  And says that the decision of the Olympic Committee to box it out is a violation of the Sherman Act.

The district court disagrees.  So does the Ninth Circuit.  Thankfully.  Maybe it's just me, but I don't want athletes at the Olympics (or Olympic Trials, even) to be replete with plethora of advertising logos on their gear.  This is the pinnacle of (mostly) amateur sport.  Not NASCAR.

The majority gets to this result by finding implied antitrust immunity under the Ted Stevens Olympic and Amateur Sports Act.  That seems plausible to me.  Judge Nguyen concurs, however, and says that she doesn't think there's antitrust immunity, but that the complaint should nonetheless be dismissed for other reasons (e.g., no viable product market).  Okay,  That seems like a path forward as well.

Though, personally, I sort of like the majority's approach.  Still:  Any path to the desired result seems fine to me.  A little swoosh doesn't much matter to me.  By contrast, a logo for "Run Gum" on the gear of an Olympic athlete really does degrade the thing.  Even to my jaded eyes.

Monday, August 06, 2018

Arandell Corp. v. CenterPoint Energy Svcs (9th Cir. - Aug. 6, 2018)

The Supreme Court held that you can't find a parent and subsidiary guilty of conspiracy under the Sherman Act because it's impossible for such entities to actually conspire.  The Ninth Circuit uses that decision to hold that a subsidiary can be liable under the Sherman Act.

You might think that gets the thing exactly backwards.  But the Tenth Circuit allegedly did the same thing, albeit in a Section 2 (monopolization) case, rather than a Section 1 (conspiracy) case as here.

I know a little bit about that because I published a long piece in the Stanford Law Review entitled Intracorporate Conspiracies that talks a lot about the underlying principle.  I'll forthrightly concede that I never thought about how that doctrine could allegedly be used to expand corporate liability.

It's a weird world.

P.S. - The times of my postings this week will likely be a bit off, since I'm in Serbia all week, and the time change is a killer.  But rest assured I'll be keeping up as much as I can.

Friday, August 03, 2018

Anselmo v. Grossmont-Cuyamaca Comm. College Dist. (Cal. Ct. App. - Aug. 3, 2018)

When I read that the lawsuit was brought by a beach volleyball player who was injured during a game when he knee hit a rock buried in the sand, I thought the opinion was going to be about the doctrine of primary assumption of risk.

Nope.  It was about "field trip" immunity.  Something that I didn't even know existed.

Apparently, when you're at a community college, the college is immune from injuries from any "field trip" or "excursion" you attend.  I'm sure that's the Legislature's way of encouraging field trips, which are cheap, (sometimes) educational, and (typically) fun.  (More fun than actual class, anyway.)

So the question becomes whether engaging in intercollegiate athletics -- here, a volleyball tournament -- at another school counts as a "field trip" or "excursion" under the statute, hence creating immunity.

The trial court granted the defendant's demurrer.  The Court of Appeal reverses.

Gotta get those rocks out of the sand.

P.S. - The plaintiff, Mary Anselmo, seems to come from a long line of volleyball players.  Here's what seems to be her sister's bio at the University of Arizona.  Notice the reference to Mary, as well as her father -- a volleyball coach and former player.

Fun sport, beach volleyball.  Except for the rocks.

Thursday, August 02, 2018

Jones v. Sorenson (Cal. Ct. App. - Aug. 2, 2018)

Justice Duarte is so, so right.  Most homeowners have no idea of the trouble they can get into when they hire someone to do pretty much anything around the house.

Here's what she says about the thing.  Plus a brief primer on the crucial difference between hiring a "gardener" as opposed to a "nurseryperson":

"Despite the prevalence of “do-it-yourself” manuals and television shows, most homeowners eventually decide that some home repairs or maintenance would best be done by hiring someone to do the work. Inevitably, some workers are injured. There are sometimes confusing rules about when a homeowner is liable for injuries to workers on the property, either in tort or under the workers’ compensation system. The common questions include whether the person hired by the homeowner was (1) required to be a licensed professional to do the work, and (2) if so, whether the person had the required license.

As stated by our Supreme Court, “It is doubtful the average homeowner realizes tree trimming can require a contractor’s license.” (Fernandez v. Lawson (2003) 31 Cal.4th 31, 37 (Fernandez).)

Plaintiff Mary E. Jones appeals from a judgment after a grant of summary judgment to defendant Danita Sorenson. Sorenson hired a gardener to work on her property and the gardener hired Jones to help her. Jones was injured when she fell from a ladder while trimming a tree at least 15 feet tall. Jones sued Sorenson, claiming such work required a license but the gardener was not licensed and the gardener’s negligence caused the fall. Jones claimed that Sorenson was liable to Jones under a respondeat superior theory, because she was as a matter of law the employer of both the gardener and Jones.

The trial court ruled in effect that the terms “gardener” and “nurseryperson” as used in Business and Professions Code section 7026.11 were synonymous, and therefore Sorenson could avoid tort liability because a person acting as a nurseryperson may trim trees 15 feet tall or higher without a contractor’s license, although a gardener cannot.

We disagree with this reading of the relevant statute, which distinguishes between a “gardener” and a “nurseryperson”; the latter refers to a licensed operator of a nursery, whereas a gardener does not require a license. There is no evidence that the gardener Sorenson hired was also a nurseryperson. This means Sorenson--the movant on summary judgment--has not refuted the claim that she was the gardener’s (and therefore Jones’s) employer, and potentially liable under a respondeat superior theory for the gardener’s alleged negligence."

The practical takeaway is in footnote two:

"As this case illustrates, a homeowner wanting tall trees (15 feet or taller) trimmed may minimize liability by hiring a licensed tree service contractor, that is, a person holding a “C-61/D-49 Tree Service” specialty license issued by the Contractors State License Board. (See Cal. Code Regs., tit. 16, § 832.61; Dept. of Consumer Affairs, Contractors State License Bd. (2015) Description of Classifications, p. 16 [licensing a person who “prunes trees, removes trees, limbs or stumps . . . .”].)"

Got it.  Will do.

Wednesday, August 01, 2018

Jaime G. v. H.L. (Cal. Ct. App. - July 31, 2018)

I clearly have hacked someone off in the California judiciary, because the court's webpage has for the past several days weirdly blocked entire campus of the University of San Diego from accessing it -- a harsh remedy, to be sure.  So no access to opinions, no access to case information, etc.

But fear not.  I'm just hopping on other IP addresses to continue to read the stuff.  Hopefully the court will correct the problem soon.  (Though I'll add that numerous e-mails from USD's IT department to the court's webpage administrator have sadly gone unanswered.)

Meanwhile, in the real world, check out this opinion.  Where things are much worse for everyone involved.

There's the Mother, who allegedly (1) abuses crystal meth, (2) leaves her seven-year old kid with a babysitter for days while she's high, and (3) doesn't send her child to school much when she's with him.

Then we have Father, who allegedly (1) commits domestic violence against Mother, and (2) "liv[es] in a house, sleeping in a bunk bed in a room with four others[, with] Father and Matthew [] in the top bed, while Father's partner Clara sle[eps] below with her two children," for which he pays "$500 in monthly rent."

Then there's the court, which diligently attempts to try to figure out where the kid should live under such circumstances, and whose efforts to do so are consistently frustrated by Mother's lawyer, who (unwisely) keeps interrupting the court so much that the judge is forced to terminate the hearing even before the court can make the required findings.

Finally, and most importantly, there's the seven-year old child, Matthew.  Who has to endure all of this.  Through entirely no fault of his own.

I'll also mention that Mother has an attorney -- on appeal, from the Los Angeles Center for Law & Justice, as well as from Gibson Dunn.  Whereas father is entirely unrepresented, both below and on appeal.

Check out the opinion and see what you think the custody situation should be.  Not that it's going to be easy to figure out how to work this thing even if you can come up with something; to take but one problem, Father and Mother live 45 minutes away from each other, and only Father has a car.  Mother is not only far away, and very far from the child's elementary school, but says she "lived in a house with others, [but] was unsure who owned it" and has "three children besides Matthew, ages nine, 10, and 12.  They were in Guatemala.  Mother last saw her other children in 2007."

Much bigger problems than having your IP address blocked by the California court's webpage.

POSTSCRIPT - I subsequently received an incredibly nice e-mail from the Judicial Council's IT department about the blockage issue.  It still isn't working, but it was great to get a follow-up, and good to know I'm not the only one with the problem (apparently, the court in Alpine, amongst other places, has a similar issue).  Thanks also to the Reporter of Decisions for alerting the JC's IT to the issue.  Super responsive by everyone.

Planned Parenthood v. Center for Medical Progress (9th Cir. - Aug. 1, 2018)

I'm sorry.  Did I originally file a concurrence that said that we should take this case en banc to make sure that denials of anti-SLAPP motions are no longer subject to immediate appeal?  (Yes.)

What I meant is that we should take some future case en banc.  Not this one.

That's Judge Gould's change of heart this morning.

Tuesday, July 31, 2018

Hansen v. Newegg Americas (Cal. Ct. App. - July 31, 2018)

It doesn't happen often, but sometimes trial courts make decisions that seem totally baffling.  You may perhaps have had personal experience with one of those.  The other side files a motion, you oppose it, you conclude that there's absolutely no way you're going to lose the thing, and then lo and behold, the trial court grants the motion.

Here's an example.

Plaintiff files a putative class action that says that Newegg advertises "discounts" off of "regular" prices that are essentially fake.  The "regular" price isn't, in fact, the market or Newegg's regular price, and the "discount" is totally illusory.  Defendant files a demurrer that says there's no standing because plaintiff got exactly what he paid for.  Plaintiff disagrees, and says it's actionable false advertising.

There's a legion of cases that pretty clearly say, in my view, that doing what Newegg allegedly did violates the statute.  And those holdings are backed up by the text of the statute itself, which says that it's false advertising to post "fake" regular prices that aren't in fact the market price.  So were I one of the attorneys, I'd have thought that this was a no-brainer, and that plaintiff was obviously going to prevail.

But it'd have been one of those cases I described.  Because the trial court indeed granted the motion and dismissed the case.

Fortunately, the Court of Appeal reverses.  In an opinion that seems self-evidently and obviously right.

Sometimes the trial court doesn't see things the same way you do.

That's why we have a Court of Appeal.