People v. Villalba (Cal. Ct. App. - March 22, 2023)

Respectfully, I'm not at all sure that this opinion does justice to the reason for the trial court's contrary decision.

I fully understand the equities. Mr. Villalba has been in the United States for 30 years -- since he came here from Mexico when he was 13 years old -- and has a wife and six kids here (two of his, three of hers, and one of theirs). He's been a legal permanent resident since 2014. To deport him to Mexico would surely radically disrupt his life, as well as the lives of his family.

But he has a conviction for domestic violence, to which he pled no contest in 2017. Which makes him subject to mandatory removal. So, pursuant to California law, in 2022 he filed a motion to withdraw his plea, on the theory that he wouldn't have pled guilty if he knew he was subject to being deported as a result.

The prosecution didn't oppose his motion, but the trial court denied it anyway. The Court of Appeal reverses and orders that Mr. Villalba be permitted to withdraw his plea.

I agree with the Court of Appeal that the evidence shows fairly strongly that Mr. Villalba was not given awesome advice by his attorney with regard to the immigration consequences of the plea. His attorney seems to have told him that he might be able to avoid being deported if he retroactively got his sentence reduced, which isn't really true; the guy was basically definitely going to be deported.

On that basis, the Court of Appeal holds that Mr. Villalba gets to withdraw his plea. The Court of Appeal hold that given the bad advice he got from his attorney alongside "the sentencing court’s confusing and contradictory advisement" about the consequences of the plea, Mr. Villalba did not, in fact, know that he would be subject to deportation on the basis of his plea.

Okay. I get it.

But here's the thing: The trial court's advisement was not, in my view, "confusing and contradictory" at all.

The trial court told him he'd be deported. For sure. The only thing that was "conditional" about that was that he'd only be deported if he wasn't a U.S. citizen. Which Mr. Villalba indisputably wasn't. Here's the exact thing that the trial court said at the time when taking his plea:

"I don’t know if this applies to you or not. I don’t need to know. I just need to advise you that if you’re not a citizen of the United States, your plea of no contest will result in your deportation, denial of naturalization, denial of citizenship, denial of reentry into the country.” The court then asked, “Do you understand that?” and defendant replied, “Yes, Your Honor.”"

It's fairly clear to me what the trial court expressly told him. It said: "Look, I don't know if you're a US citizen, and I don't need or want to know; it won't affect my sentence. But what I'm telling you is this: if you're not a citizen, as a result of your plea, you're getting deported. Do you get that?" To which Mr. Villalba said: "Yes."

That's not "confusing and contradictory" to me. It's instead fairly clear.

Now, if the Court of Appeal wanted to, I could see them saying that the contradiction between what Mr. Villalba was told by his lawyer (i.e., that he might not be deported) versus what he was told by the court (i.e., that he would be deported), Mr. Villalba didn't necessarily understand the full consequences of his plea. That I could see. It'd then be a question of fact on remand; what, in fact, did Mr. Villalba think at the time? 

The trial court thought that, whatever Mr. Villalba was told by his attorney, he was definitely told by the court that he'd be deported, so as a factual matter, Mr. Villalba knew -- notwithstanding his denials to the contrary. That seems like a factual determination, as to which we generally give the trial court some deference. It's hard for me to see the Court of Appeal saying that as a matter of law that when your attorney tells you one thing (as here) but the trial court tells you a directly different thing (as here) that you necessarily thought that your lawyer was right and the judge was wrong. It is possible? Sure. But not definite. It's a fact issue. Or so I'd have thought.

So, look, maybe Mr. Villalba should be allowed to stay. Again, I see the equities. And, if it were me, I suspect that, as a factfinder, I might well find that Mr. Villalba would not, in fact, have pled no contest if he knew for sure that he'd be deported. Because he had lots of ties to the US, and might have been willing to roll the dice.

But maybe not. The truth is, he drunkenly punched his wife in a restaurant parking lot, and there were plenty of witnesses. That's almost certainly going to get you convicted regardless. Deportation was thus almost certain however he pled, so he might well have thought that a no context plea at least gives him some favor with the judge and reduces his sentence.

Maybe not, of course. But it's a factual question. One that I could see going either way.

But the Court of Appeal sees it otherwise. I'm just not 100% sure that's right. Or really gives sufficient credence to why the trial court here did what it did, or what the trial court in the underlying case meant when it told Mr. Villalba that his plea meant he'd be deported if he wasn't a U.S. citizen.

In re Marriage of Sullivan (Cal. Ct. App. - March 21, 2023)

Two lawyers are getting divorced in San Diego. Both of them are in the Navy; one on active duty, one in the reserves. They have two children. The resulting divorce could be a lot messier than it is, but the big fight is whether California has jurisdiction to divide the wife's military pension.

Justice Buchanan's opinion says "Yes," and its reasoning appears sound. I particularly liked footnote four, which reads:

"In Tucker, the court ruled that a service member “may both agree California has jurisdiction over nonpension issues and at the same time argue California has no power to divide his or her military pension.” (Tucker, supra, 226 Cal.App.3d at p. 1256.) Although this may be so when the service member is the responding party in a dissolution proceeding, as in Tucker, it is questionable whether a service member who files for dissolution in a California court may simultaneously withhold consent to the court’s exercise of jurisdiction over her military pension. This would be contrary to the usual rule that the plaintiff who chooses the forum impliedly consents to personal jurisdiction in related matters. (Sea Foods, supra, 150 Cal.App.4th at p. 786; Nobel Farms, supra, 106 Cal.App.4th at pp. 658–659.) Moreover, Congress’s concern about forum-shopping does not apply to a service member like Lisa, who is the petitioner and voluntarily chose the forum herself. We need not decide this question, however, because Lisa did not withhold her consent to the court’s jurisdiction over her military pension when she filed her dissolution petition and specifically requested judicial confirmation of her separate property and her interest in any community property."

That sounds right to me too.

A.H. v. Superior Court (Cal. Ct. App. - March 17, 2023)

This is doctrinally merely a case about jurisdiction; in particular, whether California retains jurisdiction over dependency matters when it initially exercises jurisdiction (without objection by another state) even though the other state (here, Texas) says that it might reassert jurisdiction if the parents subsequently move back to that state. The answer is: Yes.

But factually, the case provides an insight into what sometimes happens behind closed doors. Here, in a motel in Buena Park.

The facts are as follows, with a trigger warning that it's about how some parents punished their kids:

"On Monday, August 24, 2020, at about 1:21 a.m., Buena Park police were dispatched to a motel room for a child abuse investigation. The police saw bruising and welts on the boy’s face, as well as on his arms and shoulders. The pattern of bruises indicated he had been hit with the studded side of a belt. The boy said he had fallen off a swing three weeks earlier; he later said he had fallen while running. The boy initially did not want to show his back to police, who eventually saw bruises on his back, legs, and torso. It was later discovered the older girl had multiple bruises on her legs. 

Mother said she had “whooped” her son two nights ago, but nothing had happened that night. Mother said she disciplined her son for being disrespectful. Mother said she was so enraged that while she was hitting the boy with the belt, she wasn’t paying attention to the marks on his body. When asked about the injuries to his face, Mother said she did not know about those injuries, and she was “just seeing that.” Husband told police the boy was playing outside and fell, causing the injuries to his arms and face. The family had been staying at the motel since August 1, 2020. . . .

During his CAST interview, the boy initially stated he sustained the injuries when he fell and was “nervous” about speaking about what happened. He explained he was instructed “not to say what goes on in the house cause they don’t want to go to court.” The boy said when he gets hit with a belt, “I can’t scream cause the people next door will call the police.” During the “worse whooping” a few weeks earlier, he was hit in the leg with a belt until blood came out. The boy explained that if Mother or Husband ever found he was talking about the whoopings: “They might whoop me.” The boy eventually admitted the marks on his face were from Mother hitting him with a belt. When shown a picture of the marks on his back, he teared up. The boy said Mother had hit him with a belt on his back until Husband grabbed her and told her “that’s enough.” Mother told him that if the police ever came to speak to him that she and Husband need “to be present because bad things can happen when the police are there.”

During her CAST interview, the older girl said she was asleep when her brother got whooped that night. She stated someone called the police because they saw he “had owies everywhere.” The older girl said there were things she had been told not to say. She stated that if she disclosed what happened, “Momma is going to whoop me some more.” The older girl disclosed she would scream when she gets whooped. She said Mother hits the children with a black jump rope that she twists in her hand. The older girl had marks on her legs, back, behind and forehead.

The boy later disclosed to Caregiver other multiple instances of abuse. The boy said that he and the older girl “had to take their whoopings in silence. They were both made to stand in the comer for hours at a time and not permitted to sit. They were withheld food if they were on punishment.” He disclosed “this went on for days at a time.” The boy stated “his mom would whip him so hard on his hamstrings that he couldn’t lay down to sleep at night.”

The boy talked about one incident where he “was hurting really bad and he moved his foot so she taped his feet to the floor. She continued to whoop him but he said that he broke free and started running. He said he was going to run to his grandma[’]s house but his mom got in the car and caught him.” The boy said Mother went to the store and bought “super glue. She put it on my feet [and] my hands and stuck all of them to the floor and then whoooped me. She used a knife to free one of my hands and then gave me the knife to free my other hand and my feet.” He disclosed another incident where Mother “strapped him to the couch with tape, knocked down the curtains and rod . . . and then proceeded to whoop him with the rod.” The boy said this punishment “‘was the worst one ever’” because Mother “laid him flat out on the couch face down and sat on him for one hour.” The boy disclosed that “he couldn’t breathe.” 

The boy disclosed that on the night of the parent’s arrest, Mother “started off trying to whoop him but he was moving around too much. She told him that she was going to kill him. The mother instructed [Husband] to take over and stated ‘now you’re really going to die.’ The boy said that [Husband] was taking it too far and he was screaming to his mom ‘help me he’s going to kill me’ but she was ‘just standing there watching.’ He said that he could feel his hits ‘all the way to my bones.’”

The boy was eight years old. The girl was five.

Notice all the classic attributes: the kids are super reluctant to tell what happened, the parents have told them to be silent, etc. etc.

Different people can (and do) have different takes on corporal punishment. For example, my practices as a parent differs from those of my parents. Nonetheless, one advantage of a bright-line rule is the lack of a need to figure out how much hitting is too much. Clearly, we'd all agree that the hitting here went way too far, whether in California, Texas, or anywhere else. Having to not make those decisions on the fly is at least one advantage of a categorical approach on the subject.

You generally hate to see kids taken away from their parents. But here, not so much.

Kirschmeyer v. Helios Psychiatry (Cal. Ct. App. - March 15, 2023)

I'm certain that many doctors prescribe various medications to their friends and family members. I have no doubt about that. At some level, I also don't have a problem with it. It's a ton easier and cheaper to talk to your relative than it is to make an appointment, schlep to a doctor, pay the co-pay or deductible, etc. So if the doctor her was prescribing, say, antibiotics, I'd say that this dispute was a big nothingburger.

But she wasn't. First off, the doctor here -- Jennifer Dore -- was prescribing Adderall and Klonopin, which are drugs with a serious abuse potential. Second, she's a psychiatrist, not a regular old "say ah" doctor. Psychiatrists shouldn't (generally) be treating family members. You need more distance. Third, there's an underlying dispute about whether some Ketamine -- another potentially abused drug -- was perhaps diverted as well.

Given those facts, I have zero problem with the Medical Board of California issuing a subpoena to obtain the medical records of the family member to whom Dr. Dore gave these prescriptions. If there are in fact no medical records -- or insufficient medical records -- to show a valid reason to prescribe these drugs to the relevant family member, that's worth knowing. For sure.

Would I pull the medical license of any doctor who prescribed Adderall and/or Klonopin to a family member without a ton of backup medical records? Nope. Probably not. I could potentially see reasons for doing so, and even if I didn't, I might not think that it was such an egregious violation that it called for bouncing a person entirely from her chosen profession.

But issuing a subpoena to get at the underlying records? That's entirely proper. Inquiring minds totally legitimately want to know.

Which is precisely what the Court of Appeal holds here. 

People v. Ngo (Cal. Ct. App. - March 13, 2023)

I just want to republish two quotes from this opinion by Justice Ramirez:

(1) "Defendant My Ngo was a “shotcaller” in a Vietnamese gang. In 2000, when he was 19, he committed murder for hire; for $2,000, he shot the victim in the head." (The victim died.) My reaction: Seriously?! It only costs $2,000 to get someone killed? Wow.

(2) "Defendant, a gang shot-caller, committed murder for hire in cold blood. The likelihood that a future district attorney would recommend reducing his conviction to manslaughter is infinitesimal. Even if this fantasy materialized, almost certainly the district attorney would recommend a sentence and insist that defendant agree to it." My reaction: Uh, yeah. I'm kinda agreeing with you on that one, Justice Ramirez. At least in San Bernardino county, where this case arises. Though in, say, San Francisco? Hmmmm.

Seaview Trading v. CIR (9th Cir. - March 10, 2023)

I get it. You author an opinion in a tax dispute and think that the IRS acted too late, so find in favor of the taxpayer. One of your Ninth Circuit colleagues dissents, but you prevail because the district judge that is sitting by designation from Vermont is on your side. But even though it's just a tax dispute, the court takes the case en banc, and despite the fact that you're drawn for the en banc panel (yay!), you lose (boo!).

So, understandably, you file a dissent from the en banc opinion, which in you argue your side, with the same arguments that you already made in your now-vacated panel opinion. But you also up the ante a bit, telling the world that the en banc opinion will totally screw things up and is supremely wrong on the merits. You start your dissent with the following line: "Today, our court throws our tax system into disarray." And then get into more detail on just how wrong you think today's decision is. Claiming that the en banc opinion is not only "perplexing" but also conflicts with both "the Tax Code and common sense," and that the correct resolution of the case is "straightforward" and not at all complicated.

All that rhetoric is perhaps understandable. But I must say that it's a little strange coming from an en banc decision in which Judge Bumatay's opinion on the matter gets outvoted 10-1, without a single judge on the en banc panel -- even those judges who typically vote alongside Judge Bumatay -- adopting his position in this one.

Sometimes you're totally convinced you're right even though the rest of the world, including some very bright people, says you're wrong. Other times, a bit more modesty is perhaps warranted.

People v. Arreguin (Cal. Ct. App. - March 9, 2023)

The majority opinion by Justice Gilbert says relatively nice things about the concurrence. To wit, it says: "We are sympathetic to the views expressed by our colleague Justice Yegan in his well-reasoned concurring opinion." 

In turn, Justice Yegan is somewhat sympathetic to -- and complies with -- his duty to follow controlling California Supreme Court precedent.

But Justice Yegan isn't shy about expressing his opinion on the matter. Saying, in part: "I concur under compulsion of People v. Strong (2022) 13 Cal.5th 698 (Strong). The Court of Appeal is bound to apply the holdings of the California Supreme Court. . . . I reserve my right First Amendment right to express disagreement. (People v. Musante (l980) 102 Cal.App.3d 156, 159, conc. opn. of Gardner, P.J. [“I fully recognize that under the doctrine of stare decisis, I must follow the rulings of the Supreme Court, and if that court wishes to jump off of a figurative Pali, I, lemming-like, must leap right after it. However, I reserve my First Amendment right to kick and scream on my way down to the rocks below”]; see also Witkin, Manual on Appellate Court Opinions (1977) at pp. 168- 169 [just because the Court of Appeal is bound does not mean it is gagged].)"

Everyone gets to say what they think. That's one of the great things about America.

Even if you're on the Court of Appeal.

People v. Oliva (Cal. Ct. App. - March 9, 2023)

I discussed yesterday a lawsuit against In-N-Out Burger. Today, Justice Miller issued this opinion, the first line of which is: "David Bustamante (the victim) was shot and killed in the parking lot of an In-N-Out restaurant on Christmas Day in 2015." This leads me to the tentative conclusion that, in a creative (but fairly shocking) use of guerilla marketing, In-N-Out Burger is now the official sponsor of the opinions in the California Appellate Reports.

I might add that the first couple of sentences of the opinion were perhaps slightly confusing. They read: "David Bustamante (the victim) was shot and killed in the parking lot of an In-N-Out restaurant on Christmas Day in 2015. The victim was giving a tattoo to Nancy A. when he told her he had to go out to meet a friend, who he was going to give tamales that his mother had made." Which led me to say to myself: "Wait. Why was someone giving a tattoo to someone in the In-N-Out parking lot?"

As I read further, I finally understood that, oh, he was giving her a tattoo in his home, and then later drove with her to the In-N-Out, where he was shot.

Which makes sense. I mean, you could give someone a tattoo in the In-N-Out parking lot. Sort of like a prison tattoo. But that's not what was going down here.

Before the murder, anyway.

Piplack v. In-N-Out Burgers (Cal. Ct. App. - March 7, 2023)

I was keenly interested in reading this opinion at the outset because it involves a lawsuit against In-N-Out Burgers, which has a fair amount of cachet in the youthful fast food world. Who's suing such an esteemed burger joint, and for what?

Alas, it's just another one of these post-Viking PAGA arbitration cases. On the one hand, California says that you don't generally have to arbitrate PAGA claims since they're representative actions. On the other hand, the Supreme Court recently said that the FAA requires the plaintiff to arbitrate his individual PAGA claim. So what do you do with the representative claims when the individual has to arbitrate his own? Can the plaintiff still sue in court in a representative capacity -- e.g., with standing -- even though he's not go claims of his own in court?

The Supreme Court said "No." Since the individual can't bring his own claims in court, he can't still have his representative claims in court either.

But the Court of Appeal says: "Uh, actually, Supreme Court, you're wrong. I know you think you know what California law is on this issue. But, respectfully, you're not the last word on that one. We're going to still let the employee sue in court for his representative claims."

Which is pretty darn bold. Yet entirely within the province of a state court, which has the final word on the contours of state law, including but not limited to standing under state law (which may be -- and is -- different than federal standing principles).

So, in the end, an interesting opinion less because of who the defendant is and more for what the Court of Appeal actually holds.

Twitter v. Garland (9th Cir. - March 6, 2023)

We teach law students that prior restraints on speech imposed by the government are so dangerous that we don't generally allow them. But the Ninth Circuit today holds that this particular prior restraint is just fine.

Twitter wants to let the public know generally how many subpoenas it receives from the government each year that allegedly relate to national security (as well as what type). The federal government doesn't allow that, and instead calls this information "classified." So Twitter -- and its employees -- know full well how many subpoenas are received, but can't tell anyone. Under penalty of imprisonment.

That's a prior restraint. One that the Ninth Circuit holds is just fine, since "national security" would be allegedly harmed if the public knew what a plethora of Twitter (and Google, Microsoft, Yahoo!, etc.) employees already know. We have to make sure that the public isn't aware of how many subpoenas tech companies get each year, because our "enemies" could use that information to harm our country.

It's definitely about that, not simply a desire to keep the public in the dark. Because there's no precedent for the government using alleged national security concerns as a means of hiding things from the public.

If the controlling question at issue was whether the existing regulation -- which allows some disclosure -- allows enough disclosure, I could see reasonable arguments on both sides. But the opinion by Judge Bress goes much further than that, and is extremely deferential to the government's alleged interest in keeping these things secret. (Judge VanDyke's concurring opinion is even more deferential.)

Were the question limited to whether the government can stop Twitter from telling people that it didn't receive, say, any subpoenas in a particular category, I could see how that might be legitimately classified. But I would think that, particularly in the context of a prior restraint, it wouldn't be permissible for the government to try to hide, say, that 4500 subpoenas (rather than 450) were issued annually to Twitter. I'd think that the public would legitimately want to know that, and that the disclosure of that fact outside of Twitter employees themselves wouldn't harm national security pretty much at all, much less at a level that authorizes a prior restraint.

But what do I know? It's a Brave New World these days.

Breathe Southern California v. American Lung Ass'n (Cal. Ct. App. - March 3, 2023)

When considered rationally, I imagine that any litigation between any two entities should normally be viewed as something "sad to see," since it necessarily involves substantial deadweight losses to all of the parties and they pay their lawyers instead of doing something more productive with the money.

That said, I still think that this opinion is sad to see. Not because the Court of Appeal necessarily decides the case the wrong way, but rather because it's a fight between two nonprofit organizations that do public interest work (Breathe Southern California, on the one hand, and the American Lung Association on the other) as to which entity is entitled to various bequests made -- but not yet funded -- during the period in which these two nonprofits were affiliated.

You just gotta feel bad that instead of working the dispute out informally, the two organizations had to sue each other. Particularly since the litigation spanned quite a period of time, including multiple trips to the Court of Appeal. Too bad that money was spent on lawyers rather than on something more productive, right?

But, again, you could say the same thing about pretty much every other lawsuit in the universe as well.

Still.

People v. Ung (Cal. Ct. App. - Feb. 28, 2023)

Justice Greenwood is a lot nicer than I would have been in this opinion.

Kalvin Ung stole a ton of cryptocurrency from various people back in 2018 -- roughly $1.6 million worth of the stuff. He was convicted and sentenced to ten years in prison.

In late 2021, the court ordered Mr. Ung to give restitution to the people he stole from; namely, that he give 'em back the crypto he stole. Mr. Ung (and his lawyers) contended both below and on appeal that such an order was improper. According to Mr. Ung, the value of the crypto back when it was stolen was only $1.6 million, so even though it's worth almost $16 million now (!), he can only be ordered to return the original valuation of $1.6 million. Apparently Mr. Ung thinks he gets to keep the remaining $14 million he stole.

There's a word for that; chutzpah.

The argument doesn't work. Below as well as on appeal. When you steal an item with a fluctuating value, you can be ordered to give the stolen property back as restitution. The restitution order doesn't need to be a set dollar figure. It can simply be -- as here -- the thing you stole.

Which not only is the law, but totally, 100% makes sense. You don't get a $14 million bonus just because the stuff you stole is worth a lot more now than when you originally stole it.

Mr. Ung's argument to the contrary borders on the frivolous. It's not frivolous, mind you; not legally, anyway. It's just clearly, unambiguously, and indisputably totally one thousand percent wrong.

Not even an argument, in my mind, worth making.

Galaza v. Mayorkas (9th. Cir. - Feb. 28, 2023)

Today's per curiam decision from the Ninth Circuit seems clearly correct.

Congress said that the TSA can establish qualifications for TSA screeners at airports and fire them "notwithstanding any other provision of law." Plaintiff says that the TSA violated the Rehabilitation Act when it fired her because she was disabled.

Sorry. The statute means what it says. That's why the Ninth Circuit affirms the dismissal of plaintiff's lawsuit, and why all the other circuits to address the issue have gone the exact same way.

I'll nonetheless note for the record that this statutory breadth seems profoundly unjust. Plaintiff says she can't do the "normal" TSA jobs since she's disabled, but is nonetheless fully capable of working in one of those "cushy" TSA positions as an "exit lane" or "bypass door" monitor.. Seems right to me. If we indeed have such positions (and we do), I see no reason why someone in a wheelchair or whatever can't staff those things perfectly competently.

Make UC A Good Neighbor v. Regents (Cal. Ct. App. - Feb. 24, 2023)

It's quite possible that my reaction to the first two pages of this opinion would be different were I to live in the same location as its author, Justice Burns.

The opinion begins with the type of thing that you sometimes see in high-profile and/or political cases: an express reminder that the justices are deciding the litigation based on law, not on other things like personal policy preferences or the like. Here's Justice Burns' take, which also (helpfully) describes what the lawsuit is about:

"This case concerns the adequacy of an environmental impact report, or EIR, for (1) the long range development plan for the University of California, Berkeley through the 2036-2037 academic year; and (2) the university’s immediate plan to build student housing on the current site of People’s Park, a historic landmark and the well-known locus of political activity and protest. Appellants Make UC a Good Neighbor and The People’s Park Historic District Advocacy Group (collectively, Good Neighbor) challenge the EIR’s sufficiency as to both. 

As we will explain, we are unpersuaded by Good Neighbor’s contention that the EIR was required to analyze an alternative to the long range development plan that would limit student enrollment. We also reject Good Neighbor’s view that the EIR improperly restricted the geographic scope of the plan to the campus and nearby properties, excluding several more distant properties. Nor did the EIR fail to adequately assess and mitigate environmental impacts related to population growth and displacement of existing residents. 

Two of Good Neighbor’s arguments, however, find more traction. The EIR failed to justify the decision not to consider alternative locations to the People’s Park project. In addition, it failed to assess potential noise impacts from loud student parties in residential neighborhoods near the campus, a longstanding problem that the EIR improperly dismissed as speculative. 

We are, of course, aware of the public interest in this case— the controversy around developing People’s Park, the university’s urgent need for student housing, the town-versus-gown conflicts in Berkeley on noise, displacement, and other issues, and the broader public debate about legal obstacles to housing construction. We do not take sides on policy issues. Our task is limited. We must apply the laws that the Legislature has written to the facts in the record. In each area where the EIR is deficient, the EIR skipped a legal requirement, or the record did not support the EIR’s conclusions, or both. 

Finally, our decision does not require the Regents to abandon the People’s Park project. However, they must return to the trial court and fix the errors in the EIR. As explained more below, whether CEQA will require further changes to the project depends on how the Regents choose to proceed and the results of the analyses they conduct. Ultimately, CEQA allows an agency to approve a project, even if the project will cause significant environmental harm, if the agency discloses the harm and makes required findings. The point of an EIR is to inform decisionmakers and the public about the environmental consequences of a project before approving it."

Those last two paragraphs, as I said, are a standard gambit. They're also 100% true, and I have zero problem whatsoever with Justice Burns' articulation of this reality.

It nonetheless struck me as somewhat unusual for a case like this one. It's not a fight about elections or a vicious criminal or the like. It's an EIR. Is it an EIR about a fairly well-known area, with a fair degree of history (People's Park)? Sure. But still. It's an EIR. These things do not typically result in a massive degree of public attention or vitriol. It's not a case about abortion, or the death penalty, or anything like that. It's instead a case where I would normally think the assumption of the reader is that the justices at issue are simply applying the law as their fairly and reasonably think it requires.

But as I said at the outlet, maybe my reaction in that regard is because I live in San Diego rather than San Francisco. It might well be the case -- I don't know for sure -- that up north, any legal fight about the fate of People's Park is necessarily (or easily) viewed as a political fight. One that people might well get crazy upset about, or about which someone might well confront you at a coffee shop or dinner party or the like.

Hence a real or perceived need to remind everyone at the outset that judges apply laws, not their own policy preferences.

I can't think offhand of a similar type of "political" EIR case that might happen down in SoCal. Even if there was a lawsuit about demolishing Mann's Chinese Theatre, or the Hollywood sign, or something like that, I doubt that people would view it as similarly politically tinged. Maybe offshore oil drilling might qualify; not sure one way or the other about that.

That's not to say that their the northern part of Cali has it right and the southern part has it wrong, or vice-versa. We're just perhaps a tiny bit different on that score. Hence the opening paragraphs of this opinion.

Wood v. Kaiser Foundation Hosp. (Cal. Ct. App. - Feb. 24, 2023)

I love -- love, love, love -- the opening paragraph of this opinion. It strikes the perfect tone to me; a sense of sincere inquiry, modesty, respect, etc. Qualities that every good judge (and opinion) should have. Plus its last sentence is a tiny bit low-key funny. (Super low-key.)

The opening paragraph reads:

"The judiciary’s responsibility to interpret statutes often places courts in the position of trying to decide how the Legislature would have resolved an issue we strongly suspect it never actually considered. We endeavor, as best we can, to be prognosticators. Sometimes, however, our role in statutory interpretation is more that of a detective. The Legislature included a provision or used a particular term in a statute, and it is our job to uncover what it had in mind when it employed those words. In this case we function largely as detectives, hopefully more like Sherlock Holmes than Inspector Clouseau."

The next couple of paragraphs also articulate a super-clear guide to the underlying issue and what the rest of the opinion is about. Which, again, I love. Here are those two paragraphs:

"California’s Healthy Workplaces, Healthy Families Act of 2014 (the Act) (Labor Code,1 § 245 et seq.) generally requires employers to provide eligible employees with at least three paid sick days per year. The Labor Commissioner and the Attorney General are charged with enforcing this law. Violators may be assessed compensatory as well as liquidated damages, plus civil penalties. (§ 248.5.)

The last clause of section 248.5, subdivision (e) is the focus of this appeal. It provides that “any person or entity enforcing this article on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive, or restitutionary relief . . . .” (Ibid.) It would seem fairly obvious that the Legislature had something specific in mind when it used the phrase, “enforcing this article on behalf of the public as provided for under applicable state law.” It was envisioning some kind of enforcement action. But what was it? In particular, did the Legislature mean to include—and thus restrict—actions by aggrieved employees to recover civil penalties under the Labor Code Private Attorney General Act of 2004 (PAGA) (§ 2698 et seq.) as defendant Kaiser Foundation Hospitals (Kaiser) contends? Or instead, as plaintiff Ana Wood argues, did the Legislature have in mind an entirely different statutory scheme, the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.)?"

Awesome. A beautiful way to begin an opinion, in my view.

The rest of the opinion discusses the merits. Ultimately deciding in favor of the appellant and reversing the contrary decision of the trial court. Notwithstanding the fact that every single federal district court has decided the issue the same way it was decided below.

So, at a minimum, the opinion is an important one. Particularly given the contemporary prevalence of PAGA suits in Our Great State.

On this score, maybe Justice Dato's opinion is right, and maybe it's wrong. Reasonable minds might differ on this score; indeed, undeniably do.

Regardless, the way that Justice Dato both frames the issue and then resolves it is really well done, in my view. So kudos for that. Great job.

And, honestly, I feel a little bad about saying that, since it comes literally on the heels of me giving big kudos to Justice Dato for yet another opinion. So I'm kinda piling on.

But respect deserves respect. And I didn't find out that it was Justice Dato until the very end, at which point I'd already come to the conclusion that the opinion was a darn good one.

So I shan't backtrack. Really well-written. Twice over.

People v. Kenney (Cal. Ct. App. - Feb. 22, 2023)

I was going to talk a bit about a Court of Appeal opinion today that I didn't particularly like, even though I think it's probably right on the merits. I was a little bit hesitant to do so, however, because my critiques are more about style and manner of presentation than doctrine, and I understand that different people have different preferences in that regard. Some people are happy with short, concise opinions that read (to me) more as advocacy summaries than as opinions; others take a contrary view. So in a way, I'd have just been talking about matters of style.

Fortunately, this opinion came out today as well. As for that one, I can say unreservedly that (1) I like Justice Dato's style and tone, but (2) have some definite thoughts about the merits as well.

It's another opinion where I totally get where the Court of Appeal is coming from. A mother gets a DVRO (domestic violence restraining order) against her (allegedly) very-drug-abusing 29-year old son who still lives with her. She tells him about the order and he ultimately moves out, but then comes back one day and hops into his (former) bedroom and won't leave. The cops are called and tell him he's got to get the heck out of the house because there's a restraining order against him, but he won't leave, and won't open the door to his bedroom either. Here's the exchange (which, in a way, is kind of a funny one):

“[Germain:] There’s a restraining order on file, Christopher. 

[Maldonado:] You’re not allowed to be here, buddy. 

[Kenney:] I’m not allowed to be in my own house? 

[Germain:] Correct. 

[Maldonado:] Yes, you are absolutely correct. So come out. 

[Kenney:] (Unintelligible) in my own fucking house. You’re tripping, bro. 

[Maldonado:] No, we’re not tripping. You’re the one that needs to come out. 

[Kenney:] No, I don’t. This is my fucking house, dog. 

[Maldonado:] You’re not allowed here anymore. 

[Kenney:] This is my house.” . . . 

[Germain:] As of right now you’re not going to be under arrest, we’re gonna serve you with the restraining order. 

[Kenney:] This is bullshit. Fuck you guys. 

[Maldonado:] Chris, you’re not allowed to be here. Come on, we’ll talk about it. Serve you with your paperwork and you can get going. 

[Kenney:] Break my fucking door down, dude. This is my fucking house. 

[Germain:] Okay.”

Given that last line, you can probably figure out what happens next. The police bust down the door and arrest Kenney. 

At trial, Kenney's defense is basically that the DVRO wasn't valid because -- and this latter part is clearly factually true -- he hadn't been served with it yet. But the statute says that even an unserved DVRO is nonetheless valid if a law enforcement officer verifies that it exists and orally informs the restrained person of its contents.

There's no doubt that the police didn't serve Kenney with the DVRO, and there's no doubt that they didn't inform him of the entire contents of the DVRO. The question at trial was whether what they told him -- basically, that he had to leave -- was enough, or whether they had to do something else, like tell him the whole thing and/or formally serve him with it. Which, again, they didn't.

Ultimately, the Court of Appeal holds that what the police told him was enough, and hence affirm his conviction.

Two funny -- or at least interesting -- things about that, though.

First, even if the statute is satisfied, does this really comport with the Due Process Clause? Is that really the process that's due? Before today, I don't think I'd ever read a case that held due process satisfied in the case of a formal court order when the defendant never ever received that order. Or that held that an oral statement by a police officer -- a cursory summary, no less -- was good enough.

Justice Dato's opinion doesn't talk about that at all. Maybe because he thinks the answer is clear. Or maybe because the defendant never raised the issue. Still, it seems a fairly radical view of due process, or at least one that I'm definitely not used to seeing, even in the wide plethora of procedural due process cases that I normally read and or teach to my students.

Second, at the very end of the opinion, Justice Dato notes (correctly) that the trial court erred by not sua sponte telling the jury what the proper law was regarding whether the defendant had to be formally served with the DVRO or whether the police officer's oral summary was sufficient. This was an issue of law. Indeed, it was an issue of law that was the entire dispute at trial. Defendant said he had to have been formally served and wasn't. The prosecutor said the police officer's oral summary was enough. This was literally the issue at trial, and yet the trial court didn't instruct on what the right legal rule was.

Indeed, the jury was expressly unclear as to this precise issue, and sent a note to the judge after an hour of deliberations that said: "Does Defendant have to comply if orders were not served or seen by Defendant?” To which the trial court responded: "[T]he court cannot answer your question."

That was error. As the Court of Appeal holds. You have to instruct on the law. You can't just leave that up to the jury.

So that part's clearly right.

But the Court of Appeal simultaneously holds that it was harmless error. Because under the Court of Appeal's view of the law, the officer's oral notice was enough. So, essentially, the defendant was clearly guilty. Hence no harm.

Which is, indeed, entirely how harmless error analysis works.

But doesn't that seem somewhat weird?

The entire trial was about essentially a legal issue. The trial court didn't tell the jury anything at all about that legal issue. And then when it gets to the Court of Appeal, the Court of Appeal says that doesn't matter in the slightest because the defendant was guilty anyway.

Then why even have a trial in the first place?

If the whole point is to let a jury get it right initially, why even have a trial if we're (1) not going to tell the jury anything at all relevant, and essentially just make up a total uneducated guess on what the law is, and then (2) affirm the guy's conviction because we think the law's against him.

It just seems an incredibly extreme version of harmless error analysis. The kind that makes the actual trial meaningless.

Nonetheless, that's pretty much what harmless error review does sometimes.

It's just that this is a pretty extreme example of exactly what that entails. For better or worse.

Anyway, super interesting stuff. In an opinion that's well-written and that I liked reading a lot. Even if it raised some additional issues in my mind that I thought are definitely worth considering.

American Rivers v. American Petroleum Inst. (9th Cir. - Feb. 21, 2023)

It's never a good sign when the caption and official summary of a Ninth Circuit opinion goes on for 13 single-spaced pages. Indeed, the actual opinion itself isn't much longer than that.

Fortunately, I can save you the trouble of reading the whole thing. Just skip to page 14. Judge Friedland there tells you all that you basically need to know about today's holding:

"When a federal regulation is challenged in court, the promulgating agency may ask the court to remand the regulation to the agency for an opportunity to reevaluate it and correct any errors. Courts often grant such voluntary remands without ruling on the lawfulness of the challenged regulation. The question we face today is whether a court granting a voluntary remand may also vacate the regulation without first holding it unlawful, as the district court did here. We hold that courts lack the authority to do so, and we therefore reverse."

Sure, you can wade through the whole thing if you'd like. But that's a very good articulation of the basic deal.

People v. Venable (Cal. Ct. App. - Feb. 17, 2023)

I'm going to have you read today's Court of Appeal opinion exactly the way I read it, even though that'll take slightly more time.

Here's how the opinion begins:

"Bullets fired from a small white car killed one victim and wounded another. Both victims were members or associates of the Westside Projects (Projects) gang. Months later, when the police arrested a known informant for an unrelated offense, he offered to give them information about the shooting. He told the police—and eventually testified— defendant and appellant Travon Rashad Venable, Sr. drove the car used in the shooting and Elgin Johnson was the shooter. Both Venable and Johnson were members of the California Gardens Crips (California Gardens) gang, a rival of the Projects.

A jury found Venable guilty of first degree murder (Pen. Code, § 187, unlabeled statutory citations refer to this code) and attempted murder (§§ 187, 664, subd. (a)). 2 The jury also found true, on each count, a gang enhancement (§ 186.22, subd. (b)) and a gang-related firearm enhancement (§ 12022.53, subds. (d), (e)). In a bifurcated proceeding, after defendant waived a jury trial, the judge found Venable had one prior serious felony conviction (§ 667, subd. (a)) and one “strike” prior (§§ 667, subds. (b)-(i), 1170.12). The judge sentenced Venable to a total of 129 years to life.

On appeal, Venable argued: (1) The trial judge violated his speedy trial rights by repeatedly continuing the trial to accommodate counsel for his then-codefendant Johnson. (2) The trial judge erred by admitting a rap video in which Venable appeared. (3) The trial judge erred by giving CALCRIM No. 315, which required the jury to consider a witness’s level of certainty when evaluating an identification by that witness. (4) The jury found Venable guilty of attempted murder, not willful, deliberate, and premeditated attempted murder. The People conceded this point. (5) The trial judge erred by sentencing Venable on both the firearm enhancements and the gang enhancements. The People conceded this point. (6) Venable is entitled to a remand so the trial judge can consider striking the prior serious felony conviction enhancement under newly enacted legislation. The People conceded this point. (7) Venable is entitled to a retrial for the gang allegations to be tried separately under newly enacted legislation. (8) The gang enhancements and the gang-related firearm enhancements must be reversed because the jury was not instructed in accordance with newly enacted legislation. The People conceded this point. (9) Venable is entitled to a remand for the trial judge to consider reducing the firearm enhancements under newly enacted legislation. The People conceded this point.

We initially found no errors other than those conceded by the People. (People v. Venable (Aug. 22, 2022, E071681) [nonpub. opn].) However, the Supreme Court granted review, transferred the matter back to us, and directed us to vacate our opinion and reconsider the cause in light of the newly effective Evidence Code section 352.2, enacted by Assembly Bill No. 2799 (Stats. 2022, ch. 973) (AB 2799).

Evidence Code section 352.2 requires trial judges to consider specific factors before admitting evidence of a form of creative expression—which explicitly includes rap—in a criminal proceeding to avoid injecting racial bias and improper consideration of criminal propensity. It’s uncontested the trial judge did not consider those additional factors before admitting a rap video in Venable’s trial and that the trial, as a result, didn’t comply with the new requirements for admission. The question is whether these new requirements apply retroactively to cases like Venable’s, which are pending on appeal at the time of their enactment. (In re Estrada (1965) 63 Cal.2d 740 (Estrada).) We conclude . . . "

Given this description, I was supremely confident of how the Court of Appeal would come out. The conviction was affirmed to begin with. It's a gang murder case. The Supreme Court granted review and transferred, but only to see whether a change in evidence rules is retroactive. I was sure that the Court of Appeal was going to hold that evidentiary changes are not retroactive and hence, once again, affirm.

I was wrong.

The Court of Appeal instead unanimously holds that the evidence changes are retroactive and, on that basis, reverses and remand for a new trial.

I'm super surprised. Super. Maybe there are some other cases that hold that changes in evidentiary rules are retroactive. But if there are, I can tell you this much: I don't know about 'em. I'd have thought that the rules of evidence at trial are the relevant rules of evidence, and that if evidence was admissible at the time, then it doesn't become inadmissible simply because the rules of evidence changed after the trial was over.

But the Court of Appeal says here that that's precisely what happens.

It's weird to me. Mind you, I understand the reasoning. As well as the politics and atmospherics. Here, the Legislature changed the Evidence Code to make it harder to introduce rap lyrics at trial. For various reasons: to protect free speech, to avoid prejudice, etc. That's all fine and good; the Legislature can make that call.

But the evidence here was properly admitted under the old rules, which just balanced probative value versus prejudice. Sure, that might come out the other way under the new rules. And it's certainly true that the trial court here didn't evaluate the evidence under the new rules. Because they didn't exist yet.

It just seems weird to me to say that a new trial is required because evidence was inadmissible under new rules that didn't yet exist and that the trial court wasn't required to consider. It'd be one thing if the new rules were constitutional or the like, or necessary for a fair trial. Those it makes sense to hold as retroactive. But that's not the case here. Plenty of trials went forward under the regular old "probative vs. prejudice" balancing test, and we're not reversing any of those results. But for cases on appeal, we say that a new trial's required because an "error" was made that couldn't not have been made since the new rules -- the new balancing test -- didn't yet exist.

Strange, no?

Take a different example. Imagine that certain evidence suddenly becomes inadmissible after a trial is over; say, because the Legislature creates a new privilege (maybe "Patron/Supermarket Cashier"). If a defendant confesses to a cashier and that evidence is admitted at trial, does that conviction get reversed on appeal given the new evidentiary rule? I'd have thought before today that the answer was clearly "No." Even though the new rule was "ameliorative" in the sense that it helped the defendant and was meant to advance appreciable social interests. Under the reasoning of today's opinion, by contrast, the answer seems far less clear, and might well be "Yes."

The retroactivity cases that the Court of Appeal cites here are all cases that make a fair amount of sense to me: that things like the availability of pretrial division and sentencing reductions and the like are all applicable to cases still on appeal. But evidentiary rules just seem to me different. At least when, as here, they're mere Legislative enactments and not constitutionally based or something like that.

Sure, the Legislature could expressly make those new evidentiary rules retroactive if they want. But that's not what happened here. The Legislature said nothing. Given that silence, I'd think that the very strong presumption is that the evidence rules at trial remain the evidence rules on appeal.

But apparently the Court of Appeal thinks otherwise.

Anyway, super interesting result, and one that I definitely didn't expect when I first saw the issue teed up on appeal.

Duarte v. City of Stockton (9th Cir. - Feb. 16, 2023)

You can see why the district court might have gotten this one wrong. In part, anyway.

There's a rule is that you can't file a civil suit against the police for your arrest if you were convicted. Plaintiff pleads nolo contendre ("no contest"), which is essentially the equivalent of a guilty plea. But California allows the trial court to hold pleas in abeyance, which is what the trial court did, and after six months, when the plaintiff had completed the required community service and not violated any laws, the charges were dismissed in the interests of justice.

Does that count as essentially a conviction and hence bar the civil suit?

A couple of circuits have said "Yes." Because basically the required community service and six months of not doing anything wrong was the guy's "sentence". But even more circuits have said "No." It doesn't count as a finding of guilt and sentence because it was was, in fact, not a finding of guilt or sentence. It was a dismissal.

The district court agreed with the couple of "Yes" circuits. The Ninth Circuit agreed with the four circuits that said "No," so reversed.

Fair enough. Split opinions in the Court of Appeals, so the trial court picking what turns out to be the wrong side of this debate is hardly a major slam.

The weird part, however, is the second basis for the Ninth Circuit's reversal.

The district court also dismissed the lawsuit against the City of Stockton on the ground that the city wasn't a "person" subject to Section 1983 liability. But there's an on-point Ninth Circuit decision -- lots of 'em, in fact -- that holds exactly to the contrary. The trial court finds persuasive a concurrence by a single Ninth Circuit judge that says that the rule should be otherwise. But as the panel here notes quite persuasively, a single judge can't overrule Ninth Circuit precedent -- and certainly can't do so merely in a concurrence. 

So how the district court got that one wrong is much less easy to explain.

In re Hunter W. (Cal. Ct. App. - Feb. 15, 2023)

No child is perfect; each has their own challenges. If you have a child, I strongly suspect that there are things that the child has done that make you nervous, or wish you could change, or something like that.

Some children, however, bring bigger challenges than others. So, sometimes, a brief comparison may be helpful. If only to help the parent recognize that, yeah, things could be a lot, lot worse.

So, for example, with Hunter W., down here in San Diego:

"In 2015, Hunter and another minor got into a fight over the purchase of cigarettes. The fight escalated and Hunter, who was 13 years old at the time, told the victim he was going to kill him. Hunter pulled out a knife, stabbed the victim three times, left the knife in the victim, and fled the scene. Two days later, Hunter’s mother brought him to the police station, where Hunter admitted to stabbing the victim . . . As a result of the stabbing, the District Attorney filed a juvenile wardship petition alleging Hunter fell within the court’s jurisdiction under Welfare and Institutions Code section 602.

Before the petition was adjudicated, the District Attorney filed a second petition alleging Hunter had driven without a license (Veh. Code, § 12500, subd. (a)) and under the influence of drugs (id., § 23152, subd. (a)). Hunter had taken his mother’s car and crashed it into a tree. The car caught fire and was destroyed. Hunter told the responding officers at the scene what happened, and admitted he was under the influence of Xanax and marijuana that he obtained illegally."

Yeah. That's a challenge. Especially since Hunter "did not perform well on probation, and after multiple violations . . . the court revoked probation and the parties stipulated to placement in the DJJ. The court then set the maximum term of confinement at seven years."

In short: Being a parent (or kid) is tough, but it could be worse. Much worse. 

 

Attenello v. Basilious (App. Div. Sup. Ct. - Feb. 14, 2023)

Want to be a landlord in California? Think that it'll be fairly straightforward, and that you can rely on the forms the California Association of Realtors provides?

Think again.

SDCCU v. CEFCU (9th Cir. - Feb. 10, 2023)

It's been a slow week. One case today from the Court of Appeal, two opinions yesterday, and none the day before. The Ninth Circuit has been similarly slow; two opinions on Monday and two today, but nothing at all on Tuesday, Wednesday and Thursday.

Unless you're a trademark scholar with a keen Article III focus, I doubt that today's opinion will especially wet your whistle. Nonetheless, to be honest, it's one of the most well-written of the opinions I've read from Judge Bea in quite a while. Definitely worthy of a read-- if only from the limited perspective of how to craft things in a readable and coherent manner -- even if you're not especially fascinated by the subject matter.

As a bonus, it comes to what I think is the correct result. The trial court granted a motion for summary judgment holding that one side didn't infringe the trademark of the other side. Given that fact, there was no reason for a subsequent trial as to whether that trademark was valid. Seems right to me.

Or, as Judge Bea puts it: "After a party obtains declaratory relief which decrees that it is not infringing a trademark, does it retain Article III standing to invalidate that mark? That is the central question presented in these appeals, and we answer it: No."

There are lots of other subsidiary holdings in the opinion as well -- e.g., with respect to whether there was personal jurisdiction -- and all those seem right to me as well. On the whole, 42 single-spaced pages of pretty darn good stuff.

I must admit that the whole underlying enterprise seemed fairly silly to me, however. (Though that's not Judge Bea's fault.) A bank in Illinois (that has some branches of a related bank in the San Francisco area) has a particular trademark -- “CEFCU. NOT A BANK. BETTER." -- and feels like a bank in San Diego had a related trademark ("“IT’S NOT BIG BANK BANKING. IT’S BETTER.”) that's a little to close to theirs. So the Illinois bank tries to cancel the trademark of the San Diego bank, and the San Diego bank sues in federal court in California to declare that it's not infringing the other bank's trademark and that the Illinois' bank's trademark is invalid in any event. [Note: An informed reader points out to me that the parties are both credit unions, which are technically not "banks". True enough. I'll keep the term bank, which I used initially, as (admittedly technically inaccurate) shorthand.]

Mind you: These banks do no compete with each other. But they nonetheless decide to spend a ton -- and I mean, a ton -- of money on federal litigation about this whole thing.

That would most definitely not be my call were I running either bank. Honestly. Such a waste.

There are probably also some questionable strategic choices made in the midst of the litigation as well. For example, the Illinois bank elected not to context the MSJ filed by the San Diego bank that contended that there was no infringement of the other's trademark. Probably the wrong call, or at least a call that one might have wanted to make way earlier in the litigation. Similarly, even after winning its MSJ, at which point it doesn't really have to be worried about being sued at all, the San Diego bank elected to waste tons of money to go to trial to try to establish that the trademark that it didn't infringe was invalid anyway. Again, not a great use of resources. And one that, in any event, gets reversed on appeal anyway, for lack of Article III standing.

Plus there are the various contentions on appeal, including one that Judge Bea describes -- entirely accurately -- as "near-frivolous." Not a good look.

Anyway, there you have it. Money that's largely flushed down the toilet.

Bad for the banks (and their customers). Particularly bad since they're both credit unions, which are (at least in theory) owned by the depositors.

Good for lawyers, though. We're happy to take your money pretty much whenever you'd like.

JPV v. Koetting (Cal. Ct. App. - Feb. 7, 2023)

There's some useful stuff in this opinion about alter ego liability and adding nonparties as judgment debtors, so on the doctrinal front, it's worthy of a read.

As for extra-legal lessons learned, I might suggest that one of them might be that if you're planning on getting together with a partner to make usurious loans to poor people over the Internet, it should perhaps not come as a surprise to you when your partner eventually tries 9allegedly) to steal from you; e.g., by emptying a $1.45 million bank account so you can't collect on your judgment against him.

One's character tends not to change over time, IMHO.

People v. Fernandez (Cal. Ct. App. - Feb. 1, 2023)

I've attempted in vain to think of a legal issue more depressing than the one squarely presented by the competing opinions in this case, which solely involves the following issue:

Was the evidence here sufficient to support an inference that the defendant intended to kill his 13 week old baby when he tortured him?

Everyone admits the baby was (allegedly) killed. Everyone admits that the baby was (allegedly) tortured. The only question is whether the evidence is sufficient, at this stage, to prove that the father intended to kill the baby during the torture that was inflicted upon him.

Justice Raphael, joined by Justice Menetrez, thinks it was. He says (in summary) that "It is rational to infer that a person who, over a few weeks, struck an infant in ways that broke most of his ribs, fractured his skull, wounded his brain recurrently, and induced head-to-toe bruises “could not have been unaware” that death could result from the blows. This is a rational ground for concluding that Fernandez intended to kill Marco when torturing him." (citations omitted)

Justice Ramirez, in dissent, thinks it wasn't. He says (in summary) that although "[t]here is no debate defendant tortured the baby with continuing pain-inducing acts," the "the only act described in evidence [that resulted in the baby's death] was the act of throwing the child onto a bed, after which the child fell or rolled onto the floor," and the fact that the child suffered horrific other injuries didn't establish that there was an intent to kill the baby at the time of those other injuries.

I'll not recount the horrible, horrible injuries to the baby. As I said, they are incredibly depressing. It's a 13-week infant, after all. You can read all about them in the opinion, if you'd like.

But I don't recommend it. It's stuff difficult to forget. (Especially alongside the dissent's comparison to other -- even more egregious cases -- involving other alleged torture-related deaths of infants.)

People v. Cress (Cal. Ct. App. - Feb. 2, 2023)

This amendment says, in its entirety:

"The opinion filed in this matter on January 9, 2023 is modified as follows: On page 1, following “Judith C. Clark, Judge,” strike the sentence in parenthesis that reads, “(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)” Except for this modification, the opinion remains unchanged. This modification does not effect the a change in judgment. CERTIFIED FOR PUBLICATION."

Whoops. Sorry about that, Judge Clark. (Who's not only still on the bench in Riverside, but who was in fact recently elected as the presiding judge over there.)

Travis v. Brand (Cal. Supreme Ct. - Jan. 30, 2022)

Ordinarily, I could easily see why appellants prosecuted this petition for review in the California Supreme Court. They lost, after all, in the Court of Appeal. Moreover, they not only persuaded the Cal Supremes to grant review, but also won on the merits.

I nonetheless think that it was probably the wrong strategic decision. A pyrrhic win.

Two citizens file a lawsuit under the Political Reform Act regarding a particular initiative in Redondo Beach. After a five day bench trial, they lose. The trial court awards defendants their costs and attorney's fees, finding that the lawsuit "was frivolous, unreasonable and groundless." The trial court also finds that the two citizen plaintiffs were mere "shills" for a variety of (rich) nonparties, and holds those nonparties liable for the attorney fee award as well.

Plaintiffs and the nonparties appeal. The Court of Appeal finds in favor of the nonparties, holding that they can't be found liable for the award since they weren't parties. Due process and all. That's final at this point; no one appeals.

As for the actual two plaintiffs, however, the Court of Appeal affirms the fee award. There were two statutory bases for the trial court's fee award: Government Code 91003 and CCP 1021.5. The Court of Appeal holds that it doesn't have to decide anything about the latter because the former is sufficient to affirm. Plaintiffs argued that fee-shifting under the Political Reform Act should be asymmetrical, with awards (as here) to the defendants only if the lawsuit was frivolous, but the Court of Appeal held that it wasn't, and that whomever was the prevailing party -- here, defendants -- could be awarded fees.

Plaintiffs petitioned for review, the California Supreme Court granted it, and in today's opinion, agrees with the plaintiffs that the Court of Appeal applied the wrong legal standard since (on the merits) 91003 is indeed asymmetric, and on that basis reversed and remanded.

So Plaintiffs win. 

Seemingly, anyway.

The thing is, though, I don't think they really do. First of all, they're almost certain to lose on remand. The trial court found that the lawsuit was "frivolous, unreasonable and groundless." My bet is that the Court of Appeal, on remand, will affirm. Which means that even under the Supreme Court's new legal standard, Plaintiffs will still be liable for fees.

And even if that's not true, there's still the alternative basis of the trial court's holding: 1021.5. Plaintiffs might well still be liable under that theory as well.

So Plaintiffs had to spend the time, effort and money to (1) file a (quite uncertain) petition for review, (2) once it was granted, file briefs on the merits, and argue the case, and (3) now, on remand, have to pay further costs and fees to argue the thing again in the Court of Appeal. Plus whatever ancillary proceedings (another petition for review?!) anyone might want to file.

That's a lot of scratch. Likely for nothing, since the outcome will likely not change.

Now, look, it's a big fee award: nearly $900,000. So, normally, one might perhaps make the call that even a low probability of reversing a $900,00 award is worth it. (Though if you're fees on appeal are something like $250,000, or if you bear the risk of adding another $200,000 to the fee award for the defendants' costs and fees on appeal, that might well change your calculus, no?)

But the two plaintiffs here are just two everyday Redondo Beach residents. Plaintiffs are Arnette Travis and Chris Voisey. Do you really think defendants are going to get any actual money out of these people at the end of the day? Much less $900,000?

I don't. They'll go bankrupt, or just avoid paying. Spending an actual $200,000 fees -- or whatever -- to try to get out of a practically nonenforceable judgment for $900,000 generally seems irrational to me. Not a particularly good use of resources.

Now, I get it: the two citizens here are (allegedly) mere shills for larger (much richer) people -- the nonparties who were originally held jointly liable for the fees. But the rich nonparties are already off the hook after the Court of Appeal's holding. And, sure, you might feel sort of bad leaving your two (alleged) shills holding the bag after you got 'em spanked for a $900,000 fee award.

Still. Dumping $200,000+ down the drain to likely get the exact same fee award (or more!) on remand likely seems unworth it. Just tell the two people that you'll help 'em go BK and/or pay whatever blood the defendants successfully get from the plaintiffs' respective stones. If anything. That might be a more practically effective solution.

But whatever. I get it. Rich people have money. They can spend it on whatever they like. And if they choose to spend it on lawyers, all the better for us, right?

That just might not be the economically rational call.

Or even close to one.

People v. Bolanos (Cal. Ct. App. - Jan. 27, 2023)

Carolos Bolanos did a lot of bad stuff, for which he was (for the most part) validly convicted. So bad that he was sentenced to life in prison without the possibility of parole. With the sole exception of a relatively minor conviction (in the scheme of things) for car theft, the Court of Appeal affirms.

So this 22-year old will spend the rest of his life in prison, for forcible sexual offenses against two victims and defrauding a third.

Whether that's a just sentence is a separate issue. The only question I have is about a single line in Justice Snauffer's opinion, about the fraud/theft office. Page four reads:

"Victim three agreed to sell her car to Maritza Martinez. At the last minute, victim three was told Bolanos would meet her instead. Bolanos showed up, test drove the car, and then victim three signed over the “pink slip ….” After signing over the “pink slip,” Bolanos handed victim three fake money concealed in an envelope. Victim three exited the car, ultimately realized the money was fake, and Bolanos drove off the with car."

The third sentence is a tiny bit confusing, though I think I understand it (maybe). It says that "Bolanos handed victim three fake money concealed in an envelope." At first, I thought that Justice Snauffer meant to say that the victim was handed three fake money orders, with the last word inadvertently omitted. But, no, it's "victim three" and "fake money." But I'm not a thousand percent sure what the Court of Appeal means by "fake money." Does that mean counterfeit money -- which is the term we usually use for that sort of thing? Or something else?

I looked it up, and it seems like the Court of Appeal has used the term "fake money" on a least a few occasions previously. So maybe it's just an alternative term for "counterfeit money." 

Though maybe it means movie prop money, or something like that? Who knows.

Still, I get it. Not actual money. Fake.

A minor offense in the scheme of things for which Mr. Bolanos was convicted, but still. Illegal.

Preciado v. Freightliner Custom Chassis Corp. (Cal. Ct. App. - Jan. 24, 2023)

Sometimes lawyers win cases because the case is good, even if the lawyer's not.

Sometimes lawyers loses cases because the case is bad, even though the lawyer's good.

These are simply the facts of life. The merits matter. A ton.

But, sometimes, lawyers lose cases even though the case is good. In my mind, this is one of those cases.

It's a fairly high-value personal injury case. There's a bus accident on I-15 that kills one of the plaintiffs and injures another. These two plaintiffs sue several different defendants in San Diego for that accident, including but not limited to the manufacturer of the bus chassis. Defendant moves to quash, saying that it's a Delaware company with its principal place of business in South Carolina and doesn't have the required minimum contacts with California sufficient to create personal jurisdiction.

The trial court grants the motion to quash, and the Court of Appeal affirms.

My view, by contrast, is that there's very likely personal jurisdiction in California.

The weird thing is that these two statements are not necessarily inconsistent with each other.

Justice Irion's opinion is pretty darn good, honestly, in setting forth and evaluating the often-difficult issues that arise when dealing with specific jurisdiction disputes like this one. Okay, maybe the reader could have done without the page and a half about general personal jurisdiction, because obviously that doesn't exist, and no one (as far as I can tell, anyway) is even arguing that it does. But whatever. That's a nit. On the merits, I like a ton of what Justice Irion says.

Now, I think Justice Irion may rely in part slightly too much on the Supreme Court's opinion in Ford Motor Company than is due. Yes, Ford Motor Company tells us what's sufficient for jurisdiction. But it doesn't demark the boundaries of what's insufficient. For that, at least for "stream of commerce" cases like the one at issue here, you've got to go back to the Supreme Court's opinion in Asahi. And that's one's a 4-4-1 opinion. Justice Irion cites Justice O'Connor's 4-vote opinion in Asahi, and rightly so; if the defendant here did any one of the things listed therein, then, yep, there's personal jurisdiction. But 4 justices agreed with Justice Brennan that knowledge of your product ending up in the forum state -- which virtually certainly existed here -- was good enough even without the "additional conduct" listed by O'Connor, and Justice Steven says that knowledge plus a certain number of continuous sales gets his vote too, resulting (as there) in a majority on that score. So the opinion is a little quick to jump to the belief that you've got to prove something more than knowledge; I'm not sure that's (entirely) right.

But Justice Irion is right that if you've got one of the types of additional conduct, then there's personal jurisdiction, but that (as Ford Motor Company and BMS suggest) you've got to make the appropriate focus on which types of products you're talking about. It makes a difference if it's the exact same model or chassis type that's in the forum, or an entirely dissimilar model, or something in between.

And on that point, the Court of Appeal's opinion is right: we don't have much here. Because while the plaintiff's attorney has submitted a variety of printouts from the Internet about what the defendant says about the extent of its sales, there are a lot of details we don't know. Is it the exact same type of chassis? Do the other types of chassis that the defendant sell have similar problems? Sure, there are apparently service stations in California, but what precisely is the defendant's relationship with them, and do they serve this type (or a related type) of chassis? What's the scoop.

We don't know. Because (1) plaintiff doesn't know yet, since it hasn't conducted discovery, and (2) plaintiff didn't either (a) propound discovery on these jurisdictional issues before the motion to quash was heard (despite propounding discovery on the merits), or (b) give the court details in its opposition to the motion to dismiss about precisely what discovery it was going to seek and what it thought might be thereby revealed that would compel denial of defendant's motion.

That's a problem. I strongly, strongly suspect that if counsel for plaintiff had been specific, the trial court and/or the Court of Appeal would have allowed jurisdictional discovery. Moreover, in my view, I very much believe that this discovery -- properly argued -- would have demonstrated that the defendant was, indeed, subject to jurisdiction in California.

But that didn't happen. Not because the facts were bad. I bet they were good. It's just that the lawyer for the plaintiff didn't obtain and submit them -- or even submit a concrete plan to the court for getting 'em.

Two lessons, I think, can be derived from this opinion. One specific, one general.

First, if you're a plaintiff and want jurisdictional discovery, be specific. Submit particular discovery requests that you want to propound and say what you think you're going to discover from them. Or, better yet, go ahead and propound 'em before the motion to dismiss is heard (indeed, even before you file your opposition). The Court of Appeal and trial court both seemed to put a fair amount of weight on the fact that the plaintiff here propounded tons of discovery before the hearing on the motion to quash but all about the merits, not jurisdiction. That's a bad look. It resulted here, in my view, in losing a motion -- in a high-value case, no less -- that should have been won.

Second, more generally, even if you're a super good lawyer, know your respective lane. By all accounts, counsel for plaintiff here is a fairly sophisticated (or at least successful) personal injury lawyer. Great. You're good at getting clients, negotiating settlements, and perhaps evoking sympathy from a jury. Those skills are incredibly valuable.

But that doesn't mean that you're necessarily Mr. Personal Jurisdiction. That's an important piece of the case. Critical, even, for getting this particular defendant on the hook. You gotta recognize that. Which in turn means thinking about bringing in someone who might be better than you (or at least more familiar with) these types of doctrinal fights. Otherwise, you risk results like the one that transpired here.

Maybe this particular defendant wasn't important enough to really focus on. Maybe plaintiff didn't really care if the manufacturer was left off the hook.

But it seems like a fairly big-ticket case, where one of the plaintiffs died and the other was presumably non-trivially injured. And the defendant definitely has deep pockets, plus insurance.

Probably worthwhile to make the hard core effort, and to make sure it's done right.

People v. Waldon (Cal. Supreme Ct. - Jan. 23, 2023)

Billy Ray Waldon seems to have committed a wide variety of murders (or at least so the jury found) in San Diego and, perhaps, elsewhere. He's not a guy, quite honestly, that I want back out on the street.

If I'm totally honest: Ever.

He's also fairly clearly got mental difficulties. Not that he's not seemingly quite smart. But he appears very much delusional. For example: "Waldon represented himself at trial. His defense was that federal agents framed him for the charged crimes to thwart his efforts to promote world peace, spread new languages, and advance Cherokee autonomy." 

More details, you ask? "Waldon claimed that he met a man named Mark Williams who kept appearing in various locations in Italy, Germany, and California, where Waldon was pursuing his education and activism. Waldon believed that Williams and another man were CIA agents who were monitoring him. . . . Men wearing ski masks and shirts that said “Federal Agent” joined Williams in beating Waldon; they cursed Poliespo and Waldon’s promotion of Indian autonomy. The men bound Waldon, took him away in their van, and kept him chained to a chair with a plastic hood over his head. Waldon managed to escape but learned from a news article that he was wanted for murder. He lived as a fugitive in a crawl space under a house in Imperial Beach, fearing that he would be convicted despite his innocence if he turned himself in."

To the surprise of no one (except, perhaps, Mr. Waldon), the jury rejects this defense and sentences Mr.Waldon to death for the murders.

The California Supreme Court unanimously reverses. Mr. Waldon shouldn't have been allowed to represent himself at trial.

It's hard to argue with that result. We don't want delusional people defending themselves. Lest we potentially put innocent people to death.

Which is not to say that Mr. Waldon is necessarily innocent. I strongly suspect he'll be found guilty at his retrial. In any event, he's been in prison forever. The murders at issue here were committed in 1985. That's nearly 40 years ago. It seems like he's been in prison since then on these charges, and the appeals have taken this long already. So now they'll be a retrial, more appeals, etc.

Mr. Waldon's already 59 years old. He's going to die in prison one way or the other, I believe. We're just shuffling paper around to make sure that everything goes as it should. (Eventually.)

One last thing. When someone files something like this, that's a pretty good indication that a guy might not be "all there" sufficient to allow the guy to defend himself in a capital murder case:

"In a December 1988 petition filed in propria persona, Waldon asked to represent himself “with full assistance of counsel” required to “obey” him. He stated that if his request were denied, he would seek to waive counsel and represent himself. In the nearly 100-page petition, Waldon complained of the “rampant sexual promiscuity” of his “omnivaginal” former trial counsel, alleging that counsel engaged in domineering sexual practices; sexual relations with inmates, judges, and prosecutors; drug dealing and Mafia involvement; and efforts to have a hit man kill him, among other menacing, unlawful, and sexually motivated conduct. Waldon claimed that counsel was “a brilliant and extremely dominating man, trapped in a woman’s body,” and that she tried to seduce him out of selfrepresentation by exposing her breasts to him."

Yep. Sounds persuasive to me. Definitely a guy I want representing himself in a life-or-death dispute.

People v. Morgan (Cal. Ct. App. - Jan. 20, 2023)

My first reaction to this case was: "Oh my. If you've been previously convicted of involuntary manslaughter for killing a guy -- while intoxicated, no less -- can you please not drive with a .BAC of .25?! You'd think you've have learned your lesson, no?"

Which, to be clear, remains my view.

That said, it's true that, here, the whole "killing the guy" thing happened literally 40+ years ago, when the defendant was only 19 years old. So, yeah, that's a long time ago.

Still. Definitely something you'd remember. The lesson shouldn't exactly fade.

Also, later in the opinion, when I learned that the now-somewhat-elderly defendant was picked up riding a motorcycle, I thought: "Well, at least he's riding a motorcycle instead of driving a car; that way, he's less likely to kill someone this time, and most likely just ends up killing himself. So that's something."

Which is true. Not a legal or moral defense to a DUI, obviously. But something.

Lastly, in the end, on the merits of the appeal, Justice Buchannan seems right. The relevant California statute says that a DUI gets transformed from a misdemeanor to a felony if the defendant has previously been convicted of certain specified offenses, including (as relevant here) Penal Code section 191.5, subdivision (a), which is gross vehicular manslaughter while intoxicated. But the defendant here (Mr. Morgan) wasn't convicted of that; rather, he was convicted of "vehicular manslaughter caused by unlawful exhibition of speed (former Pen. Code, § 192, subd. 3(a); Veh. Code, § 23109) and DUI (former Veh. Code, § 23101, subd. (a)), neither of which is listed as a qualifying prior for elevating a DUI to a felony under Vehicle Code section 23550.5, subdivision (b)." Those are different offenses than 191.5(a); indeed, 191.5(a) wasn't even enacted by the Legislature until 5 years after Mr. Morgan was convicted.

Mind you, the combination of the offenses for which Mr. Morgan was convicted (vehicular manslaughter plus DUI) seem pretty much identical in substance to the subsequently-enacted statute (191.5) that entitles the prosecution to elevate Morgan's current DUI to a felony. True that.

But as Justice Buchanan explains, the statutory language is nonetheless clear. It lists the qualifying convictions. Mr. Morgan's convictions aren't amongst those listed. That's pretty much the end of the matter. So Mr. Morgan's current DUI remains a misdemeanor rather than a felony.

Which -- as a reminder -- doesn't mean that it's a good idea.

But it's not a felony.

Adanna Car Wash Corp. v. Gomez (Cal. Ct. App. - Jan. 18, 2023)

Today's Court of Appeal opinion doesn't involve anything that's earth-shattering or critically important to society as a whole, and instead involves whether an appeal bond in a case involving alleged Labor Code violations can be satisfied by a different type of preexisting bond that's required of all car wash operators. Thus, unless you own a car wash (and allegedly stiff your employees out of overtime), the opinion isn't one that's likely to be of central importance to your being.

Perhaps for that reason, Justice Baker's concurrence was perhaps especially interesting. The concurrence says, in its entirety:

"Although I do not subscribe to all the particulars of the majority’s published opinion—which in several respects goes beyond what was presented to us in the briefs filed by the parties, I agree the result reached by the trial court should be affirmed."

I thought that was interesting because I suspect that a lot of justices on the Court of Appeal often share the exact same sentiment about some -- perhaps many -- of their colleague's opinions, yet join them in full. So I found it unusual that Justice Baker wanted to express the point in, of all opinions, this one.

Usually the informal give-and-take amongst justices on a panel obviates at least the perceived necessity for a concurrence like this one, at least in your run-of-the-mill type of dispute.

Not so here.