Friday, June 05, 2020

People v. Bettasso (Cal. Ct. App. - June 5, 2020)

Michael Bettasso gets sentenced to 19 years to life for driving while intoxicated.  That's a lot of time.  Mind you, he did hit and kill someone.  That's a huge deal.

Still, there are plenty of people who deliberately kill people that don't sentenced to 19 years.  There are nonetheless some bad facts for Mr. Bettasso.  He's a bartender, and there's a video that shows him drinking a mixed alcoholic drink (while on duty) at 1:21 p.m.  Which wouldn't be all that terrible, but for the fact that the video also shows him drinking "an additional six mixed drinks, including four between 1:21 p.m. and 3:05 p.m., one at 4:16 p.m., and one at 6:06 p.m. . . . [plus] five total shots at 3:49 p.m., 4:53 p.m., 5:39 p.m., 5:55 p.m., and 6:34 p.m."

That's a lot of booze.  A lot.

Plus there were the statements of his co-workers, who testified that he was definitely drunk and told him she shouldn't drive.  Indeed, one of the last statements to Bettasso, from a close childhood friend (who worked with him at the bar), was:  "You are an asshole if you decide to drive."


One last thing.  "The parties stipulated that Bettasso had four prior DUI convictions in 2001, 2005, 2013, and 2014. For the 2013 and 2014 convictions, Bettasso admitted that his blood-alcohol content (BAC) level was over .15 percent."


There's still the issue of whether 19 years isn't too much given that other defendants who knowingly kill often receive lighter sentences.  But some would argue that's a problem with the latter cases, not the former.  Regardless, given the facts of Mr. Bettasso's offense, you can understand why he gets the sentence he does.  Even if you don't agree with it.

Don't get four DUI's, get drunk, and drive.  Terrible idea.

"You're an asshole" understates the appropriate critique.

Thursday, June 04, 2020

National Family Farm Coalition v. US EPA (9th Cir. - June 3, 2020)

This 55-page opinion from the Ninth Circuit tells you probably more than you would ever want to know about soybean farming (and cotton farming) in the United States -- and, in particular, (1) how we get rid of weeds in modern farming, and (2) just how dependent we are on both (a) Round-Up and its follow-on chemicals (here, dicamba) and (b) genetically modified seeds that protect crops against such chemicals.  It's an amazing description of an industry that you usually don't see discussed much in the Ninth Circuit (as opposed to, say, Iowa).  Suffice it to say:  Farming is tough.  Very tough.

The most amazing thing to me about the opinion was the mutually-reinforcing nature of the chemicals and their (related) genetically modified seeds.  Super-brief summary:  Farmers need to get rid of weeds, picking them by hand is a hassle, everyone starts using Monsanto's Round-Up as well as genetically modified seeds that make the crops resistant to Round-Up, weeds start becoming resistant to Round-Up since it's used so pervasively, farmers start using stronger dicamba-based herbicides to which there's no resistance as well as genetically modified seeds making crops resistant to Round-Up, dicamba works well but also drifts and spreads easily to other crop- and non-crop plants (killing them in a specific way) in other fields, and then farmers with "regular" soybeans then face pressure to buy the genetically modified soybeans because if they don't the drift of the herbicide from their neighbor's field kills their own soybean (or cotton) crop and, voila, everyone's using the herbicide alongside the genetically modified seeds.

Pretty good marketing strategy for a product.

It's also interesting to see how the EPA and manufacturers try to "regulate" the problem.  There's a clear problem with "drift" so the policies about how and when farmers can apply dicamba become more and more strict over time, and those policies generally "work" when followed, but to follow 'em basically becomes impossible over time:  e.g., wind has to exist (over 3 m.p.h.) but not be too strong (over 10 m.p.h.), no spraying before one hour after sunrise or after two hours before sunset, only two applications per crop, no spraying during temperature inversions, no spraying if nontrivial rain is expected within 24 hours, etc.  In practice, that essentially means that you can basically never spray the stuff, so many farmers spray it illegally and pay the resulting fines as the cost of doing business.  Though recall that the illegal spraying doesn't harm them (except for the fines) -- it instead harms their neighbors.  The classic collective action problem, combined with a regulatory regime that is theoretically effective but practically marginal.

So if you want to learn a lot about modern farming, this opinion is definitely for you.  I promise you'll learn a lot.  As I undeniably did.

It's almost certainly not as bad as learning in detail how sausage is made.  But it's pretty bad regardless.

Wednesday, June 03, 2020

Nicole G. v. Braithwaite (Cal. Ct. App. - June 3, 2020)

It's a domestic violence case with competing requests for protective orders.  Nicole and Warren begin dating in 2011 while Warren was married to someone else.  "Warren found a one-bedroom apartment for Nicole, with high monthly rent that 'fit his taste'; he insisted Nicole move to this new apartment because he did not like where Nicole lived. He co-signed for the apartment, paid the rent, and paid for new furnishings and electronic devices."  Shortly thereafter, Warren gets arrested for trafficking in drugs, and spends five years in prison.

Warren and Nicole rekindle their relationship after Warren's released from prison, and suffice it to say, it's an unhappy relationship.  Both parties claim that the other is abusive.  Among other things, there's a lot of evidence that Warren repeatedly stalked Nicole; on Warren's side, there's that picture that Nicole admittedly sent him of her holding an AK-47.  Ultimately, the trial court finds in favor of Nicole, enters a protective order on her behalf, and kicks Warren out of the apartment.  Warren says the ownership of the property should be decided in a civil action, not as part of a domestic violence case, but both the trial court and the Court of Appeal hold otherwise.

What I thought most interesting about the opinion was that Nicole is listed in the opinion as "Nicole G." but Warren is listed (both in the caption and in the text) with his full name.  I understand that in the context of a plaintiff who files for a restraining order, but in the context of mutually requested restraining orders, I wonder if the better practice isn't to omit the last names of both sides.  Imagine, for example, that the trial court had denied Nicole's requested order and found that Warren was the actual victim.  It'd be crazy to just use the petitioner's initials just because s/he filed first, no?  I also doubt that the rule is (or should be) that we only use the initials of the party who prevailed below.  After all, what if the case gets reversed on appeal?  What if the Court of Appeal finds that the real victim is the one who lost below?  Crazy, again, to use the full name of the victim but use initials for the person ultimately found to have committed the abuse.

Plus, the decision here is sort of strange because when the opinion was initially rendered, it was unpublished, but used Nicole's full last name, both in the caption and in the text.  Plus, on the docket sheet -- which is publicly accessible online -- Nicole's full last name again repeatedly appears (no initials).  And as far as I can tell from the docket sheet, there was never a request to change the opinion to delete the last name from either the caption or the text, nor any posted amendment; there was just the decision to publish, with no formal amendment of the opinion (and yet a change to the use of initials).

I understand quite well the reason why one might want to keep the names of domestic violence victims out of appellate opinions.  As well as why one might want to keep the names of domestic violence abusers in the opinion.

It's just hard to do that consistently -- or rationally -- in the context of mutually conflicting requests for domestic violence restraining orders.  You can't presume that the person who filed first is the one entitled to privacy.  And you can't necessarily presume that the person who prevailed below is the one entitled to privacy either (or, at least, the only one).

Another tough call as regards who stays anonymous and who gets outed in public appellate decisions.

Tuesday, June 02, 2020

Wicks v. Antelope Valley Healthcare Dist. (Cal. Ct. App. - June 1, 2020)

It's not that I didn't appreciate the opportunity to read this case.  I did.  It's about someone who's feeling severe chest pains, goes to the emergency room at 4 in the morning, gets somewhat minimal diagnostic treatment there (e.g., there's an ECG/EKG and a chest x-ray, but no CT scan), gets sent home, and dies eight hours later of an acute aortic dissection.  A CT would have caught the aortic dissection, and there were plenty of hints that this might be a problem (a BMI of 33, high blood pressure and cholesterol, history of smoking, etc.), but basically the hospital was just looking for a regular old heart attack, not a dissection.

Which is a reminder to choose an ER carefully.

But what struck me most about the opinion was that it was incredibly case- and fact-specific, with excruciating detail about particular evidentiary objections, the status of particular nurses and doctors and this particular hospital, the specific facts of this particular patient's medical treatment, etc.  All of which was indeed necessary to resolve whether the trial court here properly granted the defendant's motion for summary judgment.  But nothing in the opinion jumped out at me as anything legally or doctrinally important, which is the standard guideline for deciding whether or not an opinion gets published.  This just seemed instead to be one of the many run-of-the-mill, fact-bound MSJ appeals that the Court of Appeal resolves every day.

There are definitely varying applications of the publication standard amongst the various divisions and panels in the Court of Appeal.  This is a good example, I think, of an opinion that many (perhaps most) panels would elect to leave unpublished.

Not much harm in publishing, of course.  Just wastes some trees, and maybe is helpful -- or at least marginally so -- for someone in an arguably factually analogous situation at some point in the future.

But you can put this opinion on one extreme side of the "publish-or-not-publish" spectrum.  So a good example of the disparity between panels and opinions on this score.

And a reminder that severe pain in your chest can be a dissection instead of a heart attack.  A definite killer.

Monday, June 01, 2020

Hester v. Public Storage (Cal. Ct. App. - May 28, 2020)

Please tell me you know which way this case is coming out just by reading the facts.  Yes, it involves a reality television show "star" (David Hester), but that doesn't matter.  In the actual reality show we call civil "Justice," cases like this only come out one way.

The question presented is whether Public Storage is entitled to void the sale of a storage locker once it discovers (30 minutes after the auction) that the owner has actually paid all the fees that are due and that the locker was accordingly auctioned in error.  Here are the relevant facts:

"Self-service storage facilities (owners or sellers) rent storage space to individuals (occupants) for the purpose of storing personal property. If an occupant fails to pay rent, an owner may sell the personal property contained within the occupant’s storage unit through a lien sale. Defendant owns and operates self-storage facilities throughout the country and conducts lien sales in California pursuant to the Self-Service Storage Facility Act. Plaintiff has made a living for the past 30 years buying the contents of storage units at lien sales and reselling the purchased items. He was featured on several seasons of the television show “Storage Wars,” which documented the lives of several individuals that make a living in this manner. In his career, plaintiff has attended about 10,000 lien sales, about 20 percent to 25 percent of which were conducted by defendant.

Defendant held a lien sale at its facility in Fountain Valley in July 2017. As a condition to participate in the sale, plaintiff signed a Delinquent Tenant Sale Sign-in Sheet and Agreement (delinquent sale agreement) containing various rules and regulations, including, among others: (1) “[a]ll bidders must read these Rules and Regulations and fill out the Bidder’s Sign-In Sheet below”; (2) “[a]t the time of purchase, Purchaser must complete a Certificate of Public Sale form . . .”; (3) defendant “reserves the right to null and void the auction and sale of any unit if, among other reasons, the District Manager verifies that the tenant has paid the outstanding balance in full while the auction was taking place”; and (4) “[a]ny violation of the above rules may result in bidders being barred from future sale at any Public Storage facility.”

At the sale, defendant accepted plaintiff’s offer to purchase the contents of a storage unit for $11,800. Plaintiff then placed two locks on the unit’s door and paid for the unit with a credit card and cash. He also signed a Certification of Public Sale for the unit, which certified he had made the winning bid for the contents of the storage unit during competitive bidding. The certification also stated plaintiff “[understood] that [defendant] reserve[d] the right to null and void the auction and sale of the unit for any reason.”

About half an hour after plaintiff signed the certification, a senior district manager for defendant learned the unit had been mistakenly listed for sale due to a technical glitch. The unit’s occupant had paid his past due balance weeks before the sale, but the system incorrectly listed the unit as delinquent and marked it to be sold. Defendant would not have sold the unit had it known of this mistake.

After discovering the error, the district manager immediately notified plaintiff that defendant was voiding his purchase of the unit. Defendant reversed the portion of the purchase price paid by credit card and attempted to refund the cash balance. Plaintiff refused to accept the sale’s rescission and declined the refund. Defendant then cut plaintiff’s locks off the unit and replaced them with its own locks. Defendant later sent plaintiff a letter explaining that it had voided his purchase of the unit and enclosed a refund of the cash balance and reimbursement for the cut locks."

What result?

It's obvious to me.  As well as to both the trial court and Court of Appeal.  Public Storage wins.  The contract and documents repeatedly said the sale could be rescinded if it turned out the owner had actually paid.  And that's in fact, precisely what happened here.  Summary judgment for defendant, and decision affirmed on appeal.

Exactly right.  Beyond a shadow of a doubt.

Friday, May 29, 2020

Boermeester v. USC (Cal. Ct. App. - May 29, 2020)

Two very, very, very different takes on the equity of USC's decision to expel USC kicker Matthew Boermeester from the school for intimate partner violence in 2017.

Read the whole thing at your convenience.  Troubling regardless of which side you take, IMHO.

Rubinstein v. Fakheri (Cal. Ct. App. - May 29, 2020)

When someone takes out a loan and then admits they don't repay it, it's not surprising that (1) the trial court will find in favor of the plaintiff suing for the loan, and (2) the Court of Appeal will affirm.

The defendant (Mr. Fakheri) can -- and does -- make a ton of different hypertechnical arguments in an attempt to prevail.  But the optics are terrible.  Just terrible.  You've got to repay the money you took.  Period.

Last paragraph of Justice Lui's opinion:  "Rather, the judgment awards only the principle amount that Fakheri owes directly to Rubinstein (either personally or by assignment from Lanark) because of the loan that Fakheri received. That obligation does not involve any promise to answer for the debt of another, and the statute of frauds therefore does not apply."  Seventh word should be principal.

Otherwise spot on.

Wednesday, May 27, 2020

Insalaco v. Hope Lutheran Church (Cal. Ct. App. - May 27, 2020)

Sometimes an opinion is worth mentioning simply because one might cite it.

Like this one.

It's a pretty darn categorical case that holds that even if a party has entirely failed to be diligent in discovery, a requested continuance of a motion for summary judgment still needs to be granted if the not-yet-obtained discovery is critical to the opposition.  Justice Miller doesn't say this in exactly those terms, but that's nonetheless the holding.  That even if (as here) there was no rational reason why the nonmoving party hadn't conducted yet a site inspection of the property during the prior year of discovery, that lack of diligence doesn't matter when there's not yet a trial date, discovery hasn't cut off, there's been no prior request for a continuance, and the requested discovery is essential.

The case basically obviates the due diligence requirement in that setting, holding that the need to get the MSJ right outweighs whatever marginal downside exists from continuing the motion in such a setting.

Plaintiffs can (and should) use the case to request and obtain a continuance of an MSJ  Defendants should be aware of the case so they don't schedule a hearing too early and get it continued on this basis.

Good to know for both sides.

Tuesday, May 26, 2020

In re Tom Smith (Cal. Ct. App. - May 26, 2020)

I'm starting to think that maybe I'm just a minority of one on this particular topic.

This is another case in which the defendant says his lawyer admitted his guilt at trial contrary to the defendant's wishes.  The Supreme Court recently held that you can't do that, and so the defendant here filed a habeas petition requesting the same relief (a new trial).  The Court of Appeal denied the petition (just like it denied defendant's original appeal), but the California Supreme Court then issued an order to show cause for the Court of Appeal to explain why the petitioner wasn't entitled to relief under the Supreme Court's precedent.  At which point, today, the Court of Appeal affirms its original conclusion and holds (again) that the defendant is not able to prevail on the merits.

I talked on Friday about one of these cases, and discussed at length why it seemed to me that the Court of Appeal in that case overlooked the significant factual discrepancy between the defendant's story and the defense counsel's version of the facts.  I thought that the defendant said one thing and the attorney said another, and so an evidentiary hearing was required -- even though the Court of Appeal thought there was no conflict at all.

Today's opinion -- the very next business day after Friday's opinion -- seems more of the same.

Maybe even worse.

I was struck by the strategy here.  It's a case involving a murder at Patton State Hospital.  One of the patients gets strangled in a fairly gruesome fashion, and the defendant gets charged.  The evidence against him is, quite frankly, pretty darn overwhelming.  He's virtually caught in the act, and then there are his repeated and unabashed confessions to the offense.  (For example:  "[W]e just wanted to see how it felt to kill someone” and "I killed him. I strangled him with the suspenders. . . . because [the victim] was a child molester.”)

Pretty tough to overcome.  Definitely.

Trial eventually comes around.  Defense counsel doesn't give an opening statement at all.  Then, at the defense stage, counsel puts his client on the stand (presumably because the defendant insisted on testifying) and the client insists that he's totally innocent and that this confession to the police was a lie.  There's no doubt that this is his defense:  as the Court of Appeal notes, at trial, defendant "denied killing Lucas, claiming it was Zamora and Porter who did it.  He said he was going to leave, but Porter threatened to get him too if he did."

Okay.  That's his story.  It's not a great one, given the confessions and evidence and all.  But it's his version of the facts, and the jury gets to decide.  A decision that's probably even a little easier after the rebuttal phase of the trial, in which a fellow inmate testifies that defendant told him that he "strangled the victim from behind, and it turned him on sexually" and "that if he could win at trial, he would go back to attack and rape other women as he had done in the past."  But, hey, that's life in the big city.  Defendant says he's innocent, the prosecution says he's guilty, and the jury chooses whether guilt has been established beyond a reasonable doubt.

Now it's time for closing arguments.  The prosecution's argument goes pretty much how you'd expect, the only drama being that, in the middle of it, the defendant stands up and says that he wants to leave the courtroom, saying "It’s just been so long, your Honor. I’m tired of hearing it. I didn’t do it."  But he ends up staying anyway.  The only point being this:  It's pretty darn clear the defendant's story is the one he told at trial:  That he's (allegedly) completely innocent, and that that's his defense.

Now it's time for defense counsel's opening statement.  Which begins in a way that, to me, is both understandable and yet bizarre.  Defense counsel tells the jury that the trial has made his job very very hard, telling them:  "But I’ll carry on. For all of you parents out there let me offer you some advice for a certain few who might meet this criteria in terms of for a job description. Undeterred by impossible odds. Ready to change your story at the drop of a hat. The ability to look 12 citizens in the eye and look sincere. Doesn’t mind losing once in a while. That would be a defense lawyer. And welcome to the defense bar.”

Look, I get that the job is tough sometimes.  But it's a murder case.  Maybe don't highlight that your job is to be "ready to change your story at the drop of a hat" and to try to "look sincere" even when you're arguing things you obviously don't believe.  That's something to complain about after the trial, in a bar or to your spouse or the like.  I'm not so sure it's an awesome strategy at trial.

Regardless, then, after talking about the presumption of innocence and the like, the defense counsel told the jury that it was "his belief that this was a second degree murder, not a first degree murder case."  At which point the defendant gets up and starts objecting to his own lawyer.  As the Court of Appeal notes, "[a]t that point, petitioner interjected, “Did I understand him correct? Did he just say—” The trial court asked petitioner to be quiet. Petitioner stated, “He said second-degree murder. I said I didn’t do it. [¶] . . . [¶] I object to that.”

So his counsel is saying that he's guilty of second degree murder, but the client is saying -- indeed, has testified under oath -- that he's completely innocent.  Seems a fairly stark divergence, no?

Lest there be any doubt, later on during the defense counsel's closing, there's this (classic) exchange as counsel continues to explain why his client is guilty to second degree murder:

“THE DEFENDANT: And that’s my lawyer saying that. 
THE COURT: Mr. Smith— 
THE DEFENDANT: I want to go back to my holding cell, man. I’m tired of this bull shit. I don’t want to be here, homie. 
THE COURT: Mr. Smith— 
THE DEFENDANT: I don’t care. I don’t want to listen to that bull shit. I did not commit murder. I didn’t kill that son of a bitch. 
THE COURT: Take Mr. Smith out of the courtroom. 
THE DEFENDANT: Thank you. You lying sack of shit.”

At which point the defense counsel continues his strategy.  Maybe one that makes tactical sense in light of both the evidence and all that's transpired, concluding with:

“You take your clients as you find them, okay. Despite his actions, despite his outbursts, despite his numerous problems, remember this is still a guy that it seems like the guy never caught—you can’t consider sympathy in your deliberations—but I can’t think of a time in this guy’s life when he caught a break. And I would like you to disregard his outbursts and think about the facts, that it took two people to hold and do the poking. And find him guilty of second-degree murder instead of first. Thank you.”

It's pretty clear from all this what went down, no?  Defendant insisted he was innocent, his counsel thought that was a terrible strategy, so defense counsel went with what he thought -- most likely, correctly -- made the most tactical sense notwithstanding the client's desires.

The only problem being that the Supreme Court's recent holding that you can't do that.

So reversal, right?

Not according to the Court of Appeal.

Justice Ramirez resolves this case just like the case on Friday:  By holding that there wasn't really a conflict in the evidence.  Even though it's crystal clear to me that there was.  Remember:  Defendant testified at trial that he was totally innocent, and yet, minutes later, you've got counsel contradicting that testimony and saying that his client's guilty (albeit of a lesser offense).  And when he heard his counsel conceding guilt, defendant immediately stood up and "objected" to that, insisting (yet again) that he was completely innocent.

How are these events even possibly consistent with one another?

Justice Ramirez has an answer.  He admits that, yes, at one point, defendant clearly wanted to insist that he was innocent (e.g., during his sworn testimony).  But Justice Ramirez insists that defendant must have changed his mind at one point -- namely, after the prosecution's opening argument.  Justice Ramirez appears to credit the defense counsel's testimony in this regard, saying:

"[Defense] counsel indicated that after the prosecutor’s argument, he informed petitioner that he believed there was no way the jury would buy his defense that he did not do it, based on all that had been said, and that he was going to go with the best defense he could. The record does not show petitioner made an express and unambiguous intent to maintain factual innocence at that time. Thereafter, defense counsel made his closing argument, conceding petitioner’s involvement in the murder, at which point petitioner objected."

Now, it's factually possible that's right.  It's possible that defense counsel told the defendant at that time that the "innocence" strategy was stupid and no longer viable, and that defendant at that point went along with that decision.  Truthfully, even on a stale paper record, it's very difficult for me to reconcile that fact with the undeniable reality that once counsel admitted for the first time during closing argument that his client was guilty (albeit of second degree murder), the client was both definitively surprised and went ballistic.  That certainly doesn't sound like someone who had agreed minutes earlier to that new strategy.  Sounds instead like someone who definitely did not agree with the strategy.

But we don't need to decide merely based on inferences like that, however persuasive.  Yes, Justice Ramirez is right that defense counsel says that he told his client about the change in strategy.  But Justice Ramirez's opinion also expressly states that "in fact, petitioner, in his declaration in support of his traverse, denies that defense counsel informed him of a proposed change of strategy during the prosecutor’s closing argument."  Which is certainly consistent with the events we subsequently see during defense counsel's closing, which which the defendant strenuously objects to what his counsel is saying to the jury.

So, yes, if the defense counsel is telling the truth, and there was agreement by the client that it was the best strategy to concede guilt, then the fact that the client later objected doesn't matter, and the habeas petition should be denied.  But if, instead, the defendant is right that there was never any agreement on this strategy -- e.g., that defendant always insisted (as he testified at trial) that he was innocent of the murder -- then the habeas petition should be granted.

A classic evidentiary conflict.  Which requires a hearing and a factual determination.  Because neither the trial court nor the justices on the Court of Appeal were there during the conversations between the defendant and his counsel.  Maybe (contrary to what defense counsel says) they never discussed at all the proposed "new strategy" of conceding guilt.  Maybe there was a discussion, but the defendant said "No freaking way; I'm innocent, and that's what I want you to argue."  Or maybe there was agreement after all.  You've got to figure out who's telling the truth.  Something we can't do on appeal.

So, again, maybe I'm a minority of one.  Maybe everyone else is happy -- just like every member of the panel in the Court of Appeal is happy -- deciding that, yep, the defense counsel is telling the truth here.  Just like in the case on Friday.

But, to me, you can't do that.  Particularly not here, when everything we can actually see (e.g., the outbursts during the closing argument) are totally consistent with defendant's version of the facts and his unwavering insistence on the same version of the facts he gave as his sworn testimony at trial.

Maybe I'm crazy.  But that's what I think.

Dorit v. Noe (Cal. Ct. App. - May 26, 2020)

Legal doctrine may be somewhat indeterminate, but it can nonetheless answer questions.  Today's opinion by Justice Brown is a good example.

The case raises the issue of whether filing a mandatory attorney fee arbitration proceeding can give rise to a malicious prosecution suit.  I hadn't thought about that issue before.  And even after Justice Brown posed the question, I still wasn't sure what the answer should be.  When someone files and loses a fee arbitration proceeding, can the prevailing party sue them for malicious prosecution if that filing was with malice and without probable cause?  The answer matters not only for which side gets to prevail on the merits, but also for which side gets to prevail on an anti-SLAPP motion, since (as the Court of Appeal holds) the filing of such a fee arbitration is an "official proceeding" under the anti-SLAPP statute.  So there's real money at stake.

As I said, I didn't have a view one way or the other on this issue.  Even after thinking about it a bit.  You could see arguments both ways -- a fact that highlights that legal doctrine doesn't necessarily give you definitive answers to lots of questions.

Nonetheless, after reading Justice Brown's opinion, I was totally persuaded.  Nope, no malicious prosecution suits.  For all of the plethora of reasons she explains.

It's not that I can no longer see the other side.  I still can.  But I'm persuaded that the position that Justice Brown articulates is decidedly superior to the alternative.  I concede that the procedural posture of this particular case -- an attorney who took $10,000 from a client to evaluate a medical malpractice lawsuit, didn't file anything, didn't return any of the money, defended a fee arbitration proceeding successfully, and then sued the client for malicious prosecution -- makes me somewhat inclined to the position advanced by the Court of Appeal, since an attorney defending against a fee dispute seems par for course and unlikely to require powerful tort remedies to sufficiently deter.  But even in the abstract, and even if you switch around the parties (and have the lawyer file a fee claim against a client), I agree that the point of these things is to get matters resolved quickly and easily, and that the spectre of malicious prosecution suits would only muck things up.

So a very well done opinion by Justice Brown.  A nice, definitive answer, and one that makes sense.

Friday, May 22, 2020

People v. Palmer (Cal. Ct. App. - May 22, 2020)

Because of all the initials for witnesses and crime victims, I had to literally draw a chart to try to figure out what was going on in this one.

Palmer and S.H. go to a bar, S.H. leaves, and Palmer flirts with C.S. and takes C.S. back to Palmer's room and they start having sex, except Palmer can't keep an erection.  S.H. meets A.K. after leaving Palmer, and then they too go back to Palmer's room and start having sex, at which point C.S. joins and has oral sex with S.H. while A.K. has sex with C.S. while Palmer watches (unhappily), at which point Palmer kicks everyone out (except S.H.).


It took me a little while before I even figured out everyone's gender, much less who did what with whom.  (Except that, given the erection part of the opinion, I knew that Palmer was male.  Plus his name was Joshua.)

Anyway, all this happens at the Chadwick Hotel in San Diego, which I've driven past many times and in so doing often wondered who would ever stay there, since it looks like a flop house.  Now I know.

Only when I got halfway through the opinion did I realize that I already knew this story.  Because it was reasonably high profile down here in San Diego, since Palmer then killed S.H., stuck her body in a suitcase, left it out for the trash, and it was found by bystanders.  Made the news a lot.  Though the whole sex preclude was left out (or at least left out of what I recall).

Mr. Palmer ultimately gets convicted and sentenced to LWOP, which is hardly surprising, particularly once you read Justice Huffman's opinion and discover all the conflicting (and absurd) stories that the defendant told the police and allegedly wanted to introduce at trial.  Justice Huffman goes to great lengths to explain why the defense counsel's strategy -- which was to concede that Mr. Palmer killed A.H. but to claim that it was only manslaughter, in the heat of passion -- made total sense, as opposed to Palmer's (most recent) version of events, which no one in the universe was going to believe.  (One of the particularly bad pieces of evidence were the deleted videos on Mr. Palmer's phone that showed him digitally penetrating S.H.'s anus and vagina after she was deceased.)

So everything about Justice Huffman's opinion makes sense.

Except maybe one thing.

Mr. Palmer's basic argument on appeal was that he's entitled to reversal because he told his lawyer that he didn't kill S.H. at all and yet the lawyer nonetheless admitted at trial that Palmer killed her.  If so, yes, that requires reversal; a defendant is entitled to insist upon his factual innocence, and the lawyer can't take that decision away from him by arguing otherwise at trial.

Justice Huffman explains -- again, persuasively -- why Mr. Palmer's version of the facts is absurdly stupid, and why the defense lawyer (smartly) adopted the strategy she did.  I also can't find anything in the various transcripts quoted in the opinion that suggests that, before trial, Mr. Palmer ever told the court (in connection with potential Marsden motions or anything else) that he was insisting on his innocence and yet the lawyer was nonetheless going to admit to the murder at trial.  As far as I can tell, Justice Huffman's right that if there was a conflict like that, no one on the outside knew about it before Mr. Palmer was convicted.  Which lends a lot of credence to the view that Mr. Palmer -- who's very keen on telling different stories at different times -- simply made up the story about instructing his attorney to maintain his innocence rather than admitting that he killed S.H.  On that point, I feel very confident.  If you ask which person I believe -- the defense lawyer, who said that she followed Mr. Palmer's (ultimate) instructions, or Mr. Palmer -- I definitely believe the defense attorney.

So does Justice Huffman, who distinguishes the otherwise controlling Supreme Court case on this issue by saying:  "Unlike the defendant in McCoy, who emphasized, both before and during trial, that that he wanted to proclaim his innocence, there is nothing in the record that indicates Palmer told his trial counsel that he wanted to assert his innocence before or even during trial. At most, he wanted to argue that the victim died after a "taboo sex act" (erotic asphyxiation) went wrong. The record here shows that when his attorney told Palmer that the evidence did not support such a theory, Palmer relented, decided not to testify, and refused a Marsden hearing in the middle of trial when the court asked him if he wanted one."

But the thing is:  While that's probably true, it's not what the record unambiguously shows.  As the opinion itself concedes, "Palmer asserted that a month before trial, he told his counsel he wanted to testify. According to Palmer, counsel responded that it was his right to do so, but if he chose to testify, she was not going to help him, and it would be his job to defend himself. He felt she had used coercion and fear to force him to relinquish his right to testify and tell the truth."  So it's at least Mr. Palmer's story that he wanted to testify and "tell the truth [sic]" about the alleged non-deliberate killing, his lawyer refused to permit him to do so (saying she wouldn't help him if he did so), so his desires to protest his innocence were frustrated.

Now, again, I have little doubt that the defense attorney's version is more credible, and that (as the opinion recounts) "In response to Palmer's accusation, defense counsel denied that she told Palmer she would not help him if he wanted to testify. Instead, she asked Palmer to give her notice if he planned to testify so she could prepare how best to handle it. According to counsel, Palmer told her he would think about it and then called her later to tell her he was going to take her advice and not testify. At that time, she advised him again that it was absolutely his right, and although she was in charge of strategy decisions, whether he testified at trial was not one of them."  Perfectly fine and perfectly ethical.

But it seems to me you have to decide who's telling the truth at an evidentiary hearing, no?  Not just decide the thing on a stale paper record.  Justice Huffman's opinion correctly notes that "Palmer only complained about defense counsel's representation after the jury returned a guilty verdict."  Yes, it's true he only complained about it publicly afterward.  But if his version of events is believed, he told his defense attorney privately about his desires way beforehand.  Just because someone only tells the world about something later -- whether it's trial strategy or sexual harassment or whatever -- doesn't mean it didn't happen, or that s/he didn't tell someone different (privately) earlier.  Similarly, yes, Justice Huffman is right that Mr. Palmer "admitted to telling his attorney multiple stories about what happened with the victim," and that he "conceded that he was not consistently telling his attorney that he was innocent and wanted to present an innocence defense."  But that you lied to your attorney at one point in no way waives your right to insist upon your innocence at trial.  Maybe, for 12 months, I consistent tell my attorney:  "Yes, I deliberately killed her, darn it, wish I hadn't."  And maybe, two months before trial, for the first time, I suddenly tell my attorney:  "Wait.  No.  I totally did not kill her.  I was lying to you before.  I want to assert my innocence at trial."  The attorney can no way at that point say:  "Tough.  You once told me you killed her.  So I'm going to plead guilty for you (or admit at trial that you killed her)."  You -- the defendant -- get to decide whether or not to concede your guilt.  Maybe -- probably -- you were lying the second time.  But maybe you were lying the first time.  Regardless, whether you killed the person is something the jury gets to decide, not your own attorney.  If you want to say you are not guilty, fine, that's your right.  Good luck with that.  You're entitled to present that defense at trial, regardless of whether your lawyer thinks that's a great idea.  It's your life on the line, not hers.  (Put to one side whether the lawyer can put you on the stand to testify, since that's neither the issue here nor do we need to get into the thorny issue of how one "knows" that testimony is perjured or a defendant's right to testify via a narrative.  The defendant indisputably still gets to control whether he pleads guilty and/or have his counsel admit the offense at trial.)

So, yes, the Court of Appeal is right that "this is not a case like McCoy where the defendant emphatically insisted he was innocent and consistently told his attorney to argue such at trial."  But the rule is not that you have to "emphatically" insist on that right nor advocate for it "consistently".  Yes, in the end, you've got to direct your attorney to do something, in terms that are not equivocal.  But if I say, definitively, "No, seriously, I don't care what I said before, I'm telling you now:  Don't admit that I killed her at trial," then that's what you've got to do.

And that's what Palmer says that he said.  We certainly have a lot of reasons to disbelieve him.  But I don't think that either the Court of Appeal or the trial court can properly decide who's telling the truth without putting both of the relevant witnesses on the stand and listening to their stories under oath.  An event that, as far as I can tell, has not yet transpired.  And which means we can't say for certain which version of the facts is right.

I'd be fine if the opinion said "So we can't tell what really happened here, since there was no evidentiary hearing, so we'll remand for one," or maybe even if it said "We're not saying what actually went down, for that, you can assert a claim on state or federal habeas, in which you'll be entitled to an evidentiary hearing, but for now, on appeal, you can't get relief."  But the opinion casts itself much more categorically than this.

Which accurately describes -- very accurately, I suspect -- how any evidentiary hearing will almost certainly ultimately come out.

But you're entitled to one before someone says that what you've said is untrue and hence you're in prison for the rest of your life.  Because if -- a big if -- what Mr. Palmer says is actually true was true, he's entitled to a trial at which his counsel does not concede that he deliberately killed the victim.

Wednesday, May 20, 2020

Changsha Metro Group Co. v. Xuefeng (Cal. Ct. App. - May 20, 2020)

I'm incredibly frustrated by this opinion by Justice Miller.  Profoundly, deeply, irretrievably frustrated.

Let me say at the outset:  Yes.  Yes, yes, yes, yes, yes.  Defendants filed a frivolous anti-SLAPP motion.  The trial court accordingly awarded $61,915 in fees to the plaintiff pursuant to the anti-SLAPP provisions that affirmatively require an award of fees in such cases.  Yes.  Exactly right.

So when Justice Miller affirms that award, I'm totally on board for the result.

But, as to how he gets to that result in the opinion:

No, no, no, no, no, no, no.  Deeply and profoundly frustrating.

I totally agree with him on his key practical and doctrinal point:  That you can't require the usual separate motion and 21-day "safe harbor" provisions of CCP 128.5 to frivolous anti-SLAPP motions.  The timing and structure totally doesn't work.  It'd completely conflict with the purposes as well as the manifest intent of the statute.  Exactly right.  It's also, parenthetically, not what's done in practice.  Just like defendants often ask for (and receive) their attorney's fees in the anti-SLAPP motion itself -- no separate motion required (though you can file one after you prevail on the motion if you'd like) -- so too to plaintiffs often ask for (and receive) their attorney's fees as a result of the anti-SLAPP opposition itself.  No side has to give the other one an opportunity to "withdraw" their papers (the complaint or the motion), and as long as the other side gets to be heard (which they do), either side can ask for their fees on an anti-SLAPP motion in their underlying papers.  No separate motion is necessary.

On these points, again, Justice Miller seems exactly right to me.  That's the way the world both is and should be.

The problem is this:  Section 425.16(c) of the anti-SLAPP statute says that a plaintiff can recover (i.e., a court can award) its fees in response to a frivolous anti-SLAPP motion "pursuant to Section 128.5."  That's the usual sanction provision in the CCP.  The thing is:  That statute requires that any sanctions be sought (1) in a separate motion, and (2) with a 21-day safe harbor period.  Which, as I've mentioned before, totally doesn't work in connection with a frivolous anti-SLAPP motion.  Yet here we have a defendant saying, basically, "You can't sanction me for my frivolous anti-SLAPP motion because you didn't comply with CCP 128.5, since you didn't give me 21 days notice and make a separate motion, so ha ha ha, I get away with it."  Which, if true, is what virtually every frivolous anti-SLAPP motion filer is going to do.  We've already got a problem with frivolous anti-SLAPP motions given the huge procedural benefits (discovery stay, automatic appeal, etc.) arising from such requests.  We don't need to make such motions even more palatable by making it virtually impossible to sanction 'em.

So, on that, right on, Justice Miller.  Those provisions don't apply.

But why not?

Here's where I think the Court of Appeal goes completely off the rails.

Justice Miller says:  "Ha!  CCP 128.5 has two different provisions.  The first, paragraphs (a) and (c), say that you can award attorneys fees for frivolous papers if such a request is made in the moving or opposition papers of a brief.  It's only the second provision, paragraph (f), that contains all those pesky requirements about having to file a separate motion, have a 21-day safe harbor period, etc.  So the trial court here just followed the first of those provisions -- (a) and (c).  So there!  No safe harbor or separate motion requirement applies."

Yes, if true, that'd solve the problem.

But I'm profoundly confident it's not.

First off:  To my knowledge, no one, ever, has read the statute this way.  The cases that say that you've got to file a separate motion and follow the safe harbor provision under Section 128.5 are legion.  And I need not even mention the massive legislative history in this regard, which makes it crystal clear that you've got to follow the separate motion and safe harbor provisions whenever you ask for fees under Section 128.5.  There simply aren't two different provisions, one of which requires a safe harbor separate motion and one of which doesn't.

And why would there be?!  What would possibly be the point of requiring a separate motion and safe harbor in paragraph (f) if a party could get around it by simply filing a request for fees in response to a frivolous request pursuant to paragraphs (a) and (c), which purportedly contain no such provision?

To make things worse, Justice Miller's analysis also appears internally inconsistent.  He says:  "Thus, section 128.5 provides two procedures for an award of attorneys’ fees: (1) request attorneys’ fees in moving or opposing papers and allow an opportunity to respond (§ 128.5, subds. (a) & (c)); and (2) after obtaining attorneys’ fees per subdivision (a), request a sanction of attorneys’ fees by (a) filing a separate motion, and (b) providing a 21-day safe harbor."  What?!  Why would you allegedly "obtain" fees under section (a) and then, "after obtaining attorneys' fees per subdivision (a), [then] request a sanction of attorneys' fees" under (f) by doing the separate motion and safe harbor thing.  You already got your fees, right?!  Why would you be filing yet another motion -- much less one with all of those procedural hurdles you circumvented the first time by moving under (a)?

Last -- but definitely not least -- the Court of Appeal's analysis is inconsistent not only with the entire structure and purpose of CCP 128.5, but also its text.  Justice Miller says that you can ask for a 128.5 award under either (a)/(c) or (f).  You choose.  But paragraph (f) expressly starts out by saying that "Sanctions ordered pursuant to this section shall be ordered pursuant to the following conditions and procedures," and then lists (among other things) the separate motion and safe harbor rules.  This plain language says that any sanctions under this sanction -- i.e., anywhere in CCP 128.5 -- have to follow these particularized rules, not just that sanctions under this paragraph have to follow the rules.  And, as I noted earlier, that's indeed how this language has been interpreted in every single prior case of which I'm aware regarding 128.5 requests:  You've got to follow the safe harbor and separate motion requirements for any party-sponsored request.  Period.  And, yet again, the legislative history on that point is pretty darn clear:  that's what the Legislature definitely wanted.

So it seems to me that it's just flat wrong that there are purportedly two independent provisions of CCP 128.5 under which you can ask for your attorney's fees.  Moreover, such a holding by the Court of Appeal is not only wrong, but also profoundly dangerous.  If left standing, it would abrogate the deliberately intended separate motion and safe harbor rules not only in anti-SLAPP cases, but in all other cases as well.  From now on, I'll just plop my request for attorney's fees into the last paragraph of my opposition papers, claiming that the motion is frivolous, and say that's okay because I'm doing so pursuant to (a) and (c), not (f).  Yes, that's the practice that we used to employ.  But that's also the practice the Legislature undeniably intended to stop.  Today's holding, if left undisturbed, would inexplicably bring it back.

In short, I'm confident that the Court of Appeal's analysis is wrong here.  Seriously and critically wrong, with potentially disastrous results.

Though that leaves us with the question:  So how do we get to the right result here?

Which only adds additional frustration.

Because, again, I see why Justice Miller adopts the analysis he does.  That way, this case comes out the way it should -- with the Section 128.5 procedures inapplicable to anti-SLAPP cases, since they don't fit there.  So, yeah, I can see why that might push someone to find "two different procedures" in Section 128.5 as a potential way out.  Even though, to me, the statute no way in fact permits us such an out.

So what to do?  Is the plaintiff here really right?  Do we really have to follow the safe harbor and separate motion rules in response to frivolous anti-SLAPP motions?  Because, if so, that's a fairly bad world too.  Maybe not as bad as gutting the overall sanction protections in 128.5.  But nonetheless pretty darn bad.  Is that really where we're left.

First impression:  Maybe.  Maybe it was a legislative error to say that frivolous anti-SLAPP motions should be sanctioned "under Section 128.5" -- they didn't anticipate that this would gut the ability to sanction and thereby deter such requests.  Maybe we have to so hold, at least given the facial clarity of the text that says that, yes, such awards are indeed governed by CCP 128.5.  That's definitely bad for the righteous party here.  But we can take some solace in the fact that, virtually without a doubt, the Legislature would promptly respond to such a ruling by amending the statute.  Which we could even suggest in our opinion.  Because, yes, in truth, that should happen.

But I think it's also possible that we might be able to reach the same result that Justice Miller (and I, and the rational world as a whole) prefers in a different, but plausible, way.

Because, yes, the Legislature made an error when it stated that frivolous anti-SLAPP motions are subject to the provisions of Section 128.5.  But only sort of.

You see, at the time the Legislature passed the anti-SLAPP statute (in 1992), and even when they later amended the statute (in 1993) to make mandatory (rather than discretionary) an award of fees for frivolous anti-SLAPP motions, CCP 128.5 didn't yet have the safe harbor and separate motion requirements.  That's why the Legislature didn't think it's was a problem.  Back in those days, if you wanted sanctions, you just plopped 'em in your moving or opposition briefs.  No biggie.  So all the problems that Justice Miller (rightly) notes in applying Section 128.5 to anti-SLAPP motions didn't exist when the Legislature passed the relevant provisions of the anti-SLAPP statute.

I don't want to bore you with the details of the numerous (and incredibly complicated) revisions to the California sanction provisions, but suffice it to say that, after the anti-SLAPP motion was passed, in 1994 and beyond, that's when the Legislature started its never-ending tinkering with CCP 128.5 to make it more in line with the recent changes to Rule 11, the federal sanction provision (then less in line, then more in line, then sort of in line, etc.), including but not limited to the separate motion and safe harbor provisions.  That's what caused the problem.  When the Legislature was futzing with the various changes to the basic sanction provisions, I'm quite confident it didn't think about how those changes might affect a residual clause in the anti-SLAPP statute that cross-referred to them.

Hence the problem.

Now, again, maybe that's the Legislature's problem.  One they can fix.  We simply follow the statute as written, and then they can amend it to correct the injustice that we've done in a particular case.

Or maybe not.

It occurs to me that a different way out of this pickle is to rely on legislative intent to hold that, given the structure and practical effect of applying the safe harbor and separate motion provisions to anti-SLAPP motions, the Legislature only intended to apply the provisions of 128.5 that existed at the time to such motions.  And since, at the time, no separate motion or safe harbor rules applied, those don't apply to frivolous anti-SLAPP motions.  End of story.

Now, admittedly, we typically apply statutory cross-references across the board, and say that when the one statute changes, so necessarily does the other.  But I'd likely find supportable an argument that this principle doesn't/shouldn't apply when those other statutory changes conflict with both the structure and intent of the underlying statute itself.  As they do here (and as Justice Miller quite ably demonstrates).  So, yes, Section 128.5 changed, but given the requirements of the anti-SLAPP statute itself, those changes didn't affect the original intent or effect of the anti-SLAPP provisions.

That's a plausible result.

It's even more plausible because the Legislature's particular amendments to Section 128.5 would in fact have made it absurd to apply those same changes to the anti-SLAPP statute.  To go through all those changes and their effects would make this post even longer and more obtuse than it already is, but to mention just briefly, at various times, the Legislature (1) enacted different statutes (e.g., 128.6 and 128.7) to replace 128.5, (2) repealed 128.5 entirely, and (3) made 128.5 not applicable at all to various cases filed at various times -- e.g., several cases hold that 128.5 doesn't apply at all to any case filed prior to January 1, 2015.  To apply those amendments to the anti-SLAPP statute would be totally crazy, even though that's what the text ("pursuant to Section 128.5") facially requires.  For example, it would mean that we couldn't sanction frivolous anti-SLAPP motions filed before January 1, 2015 at all, since CCP 128.5 didn't exist at that time (more accurately, didn't apply in any of those cases) -- a result undeniably contrary to legislative structure and intent.  So too here.

So, in short, I think there's probably a way to reach the result that both Justice Miller and I prefer, and one that makes the world a better place.

It's just very much not the approach that the Court of Appeal takes here.

So I'd amend this opinion.  Or depublish it.  Because I'm happy with the result.  But very much feel a different way about the doctrinal moves it takes to get there.

POSTSCRIPT - Oh, and I meant (but forgot) to mention in this overly-long post that the caption also recites that counsel for appellant in this civil dispute is "Thomas Ogden, under appointment by the Court of Appeal."  I suspect that's a mistake.  It's very rare for counsel to be appointed in a regular old civil (money) dispute involving private parties, and even though I've found one case in which Mr. Ogden was apparently appointed pro bono counsel in the Ninth Circuit, I didn't readily find any cases in which Mr. Ogden was appointed by the Court of Appeal -- nor does the docket to the present case reflect any appointment of counsel by the Court of Appeal.  (Plus, yesterday's unpublished opinion in this same case, which is about the merits of the underlying anti-SLAPP appeal, just lists Mr. Ogden as regular old counsel, not appointed counsel.  So it seems like that's another, very minor, mistake.)

Tuesday, May 19, 2020

People v. Valles (Cal. Ct. App. - May 19, 2020)

There's only a single published opinion from the Ninth Circuit and California appellate courts today.  One that the Court of Appeal's website inexplicably lists as "People v. Dueñas" -- which is ironic, as the opinion (which is actually People v. Valles) is one of the legion of cases in which the various justices indeed spar over whether the Court of Appeal's prior decision in People v. Dueñas (currently on review in the California Supreme Court) is right or wrong.

So add this opinion to the list.  But let's at least label it with its actual name:  Valles.

The most interesting part of today's opinion is not really the lingering Dueñas dispute, but rather Justice Menetrez's concurring opinion.  Which definitely begins with a bang:

"The opinion authored by Presiding Justice Ramirez is not a majority opinion. No member of the panel joins the analysis in Part 2 of the Discussion concerning People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), though we are unanimous as to the result. I feel compelled to point this out because otherwise readers could easily be misled. Only by reading the disposition and understanding its import (or by noticing that no one else has signed Presiding Justice Ramirez’s opinion) would a reader be able to determine that not everything in Presiding Justice Ramirez’s opinion is the opinion of the court. Given that Court of Appeal opinions (both published and unpublished) are often read in snippets online, dispositions are rarely read by anyone but the parties, and signatures are probably read even less, the potential for confusion here is far from trivial."

That's definitely making a point with a sharp stick, eh?

(Personally, I take no umbrage at Justice Menetrez's statement that Court of Appeal opinions "are rarely read by anyone but the parties," but for the record, there's at least one person other than the parties who reads every single one of the published ones; e.g., me.  So never fear that literally no one is going to read the thing other than the people who really care only about the result (e.g., the parties).)

Justice Menetrez not only wants to make clear the exact holding of the case -- something that you see other justices (in dissent or otherwise) also talk about -- but also seems to want to express a decent amount of displeasure at how the panel elected to publish the opinion.  A point which, again, he makes without holding much back:

"In addition, Presiding Justice Ramirez is publishing his Dueñas analysis, which is not joined by any other member of the panel and conflicts with this division’s published precedent in People v. Jones (2019) 36 Cal.App.5th 1028, 1031-1034 (Jones), which held that a Dueñas challenge to a pre-Dueñas minimum restitution fine is not forfeited by failure to raise it in the trial court. Presiding Justice Ramirez’s opinion does not explain why he is declining to follow Jones; the opinion does not even acknowledge that he is doing so. Moreover, in a footnote within his Dueñas analysis, Presiding Justice Ramirez erroneously refers to his own opinion as “the plurality opinion.” (Lead opn., ante, at p. 11, fn. 2.) “An opinion is characterized as a plurality opinion when it has more signatories than any other opinion supporting the judgment in the cause, but less than a majority.” (Cal. Style Manual (4th ed. 2000) § 1:10, p. 13.) Presiding Justice Ramirez’s opinion has the same number of signatories as every other opinion in this case (namely, one), and every opinion in the case supports the judgment (on which we are unanimous). In sum, Presiding Justice Ramirez is publishing a dissenting view on the Dueñas issue that is inconsistent with our division’s published precedent, and he is presenting it as a plurality opinion.

Justice Miller is the only member of the panel who is in the majority on every issue, both reasoning and result. Our division’s policy (as well as common sense) dictates that Justice Miller should therefore author the majority opinion. But my colleagues have chosen a different path, with Presiding Justice Ramirez authoring a lead opinion that expresses a minority analysis of the Dueñas issue."

You sense a keen sense of frustration here, no?

To a degree, all this is much ado about nothing, since the underlying issue (Dueñas) is one on which that the California Supreme Court will have the final say anyway, and nothing the Court of Appeal says on the matter (and certainly nothing in this particular opinion) will change that or (presumably) have any practical effect whatsoever on what the law is or becomes.

But, even then, sometimes people get very testy about process.  Even when it doesn't practically make any difference.

It's like what they say about academic faculty meetings.  The truth of which I can readily attest:

They're so rancorous precisely because nothing that transpires therein matters in the least.

POSTSCRIPT - And, right after I hit the "submit" button on this thing, the Court of Appeal changes the caption from "Duenas" to "Vallas".

Monday, May 18, 2020

Estate of Elmers (Cal. Ct. App. - May 18, 2020)

When you read cases from the nineteenth century, they're replete with legal formalism and focus on hypertechnical distinctions that are often found to be dispositive.  I'm often left with a sense that the judges of that era were trying their best -- were doing the job that they believed they were required to do -- but that the result of those cases were often wildly inequitable as a result.  Go ahead and pick up an opinion from the 1800s and you'll see what I mean.  The kind of "justice" rendered in those types of cases is a far cry from what we see in the modern era.  That's an area in which the justice system has undeniably improved over the last century or two.  Modern cases follow rules and doctrine, of course (just like in the old days).  But we typically follow and establish rules for a reason, and end up (more often than not) with a fair and equitable result.

Then there's this opinion from today.  Which reads more like something from 1820 than 2020.

I'm not saying that Justice Stratton fails to follow the appropriate rules.  By all accounts, she's a conscientious jurist, and there's no doubt that this opinion attempts to follow the legal principles as Justice Stratton sees them.

But the resulting unfairness that arises from this hypertechnical doctrinal focus is striking.  Which is something you don't typically see -- or at least see so palpably -- in modern cases.

Here's the scoop:

In 1991, Norbert Eimers makes a common type of testamentary trust, which essentially says that when he and his wife both die, all their money goes to their surviving kids (in trust).  Makes sense.  What about when the kids who get the money then die?  No problem.  The trust says -- again, this is common -- that the kid can specify in his or her will where the money goes.  (Which makes sense; it's basically their money.)  So if they want to give it to a friend, or to charity, or whatever, go ahead.  But if the kid doesn't specify where s/he wants the money to go, then it goes to the kid's children (if any), and if there aren't any such children, then it gets split up among Eimers' surviving kids and grandkids.

Totally common.  Totally fair.

Mr. Eimers dies in 1992, and his wife dies in 2011, so their kids split the money.  So far, so good.  One of those kids is Tim Eimers.  Tim doesn't seem to have a spouse or children, so in 2013, he writes out a holographic will that gives all his money -- expressly including the trust money from his parents -- to Charles & Caryn Saletta.  His intent couldn't be clearer.  His handwritten will says:

“I Timothy William Eimers am writing this document as my Last Will and Testament. I am doing this of my own free will and of sound mind and body. “To Charles J. Saletta and Caryn Saletta I hereby leave my shares of the Norbert Theodore Eimers Family Trust. I also leave all my other property and any funds I have.”

Okay, then.  No problem.  It's essentially his money, his parents said he could give it to anyone he wanted, and he crystal clearly gave it to Mr. and Mrs. Saletta.

But in the middle of the 30 page trust document that Mr. Eimer's prepared, there's a provision that says "Upon the death of a child, any share held in trust for the child’s benefit . . . shall be distributed to or for the benefit of such one or more persons or entities, and on such terms and conditions, either outright or in trust, as said child may provide and appoint by will specifically referring to and exercising this power of appointment."  (Otherwise the money goes to the kids and grandkids.)  Remember:  There's zero doubt that Tim wanted to give the Salettas the trust money, and he even specifically gave them "my shares of the Norbert Theodore Eimers Family Trust" in his holographic will.

But the fine print of the trust document says you've got to specifically refer to the "power of appointment."  Which -- not being a lawyer, and in the midst of writing a handwritten will -- Tim didn't clearly do.  He just said he's giving them the money, not that he's "appointing them" to get the money.

Now, in the modern era, you'd expect that we'd have a doctrine that would deal with this problem.  Because we want to do justice.  We'd call it substantial compliance.  We'd say that Tim "implicitly" exercised the power of appointment.  We'd say that the greater (giving them the $) included the lesser (appointing them).  There's a million different doctrinal ways that we could end up doing the right thing here.  One of which -- the one at issue in this appeal -- is for the Saletta's to file a petition to amend the holographic will so that it adds twenty six characters and hence reads "To Charles J. Saletta and Caryn Saletta I hereby leave my shares of the Norbert Theodore Eimers’ Family Trust under the power of appointment. I also leave all my other property and any funds I have.” (Words added.)  That's clearly what Tim was trying to do, after all -- everyone admits that.  So let's achieve justice and do what both Mr. Eimer as well as Tim wanted -- let him give the money to the Salettas.

Nope.  The Court of Appeal doesn't let him.  Those four words weren't used, so we can't do what we know the parties wanted.  The Salettas get nothing and the money goes to people who already got their full share under the will (Tim's siblings and nieces and nephews).

One can direct the critique of this result in any one of a number of places.  You can blame the Probate Code for being absurdly (and meaninglessly) strict.  Maybe we should amend it.  You can blame the authors of the first opinion from the Court of Appeal that held (in an unpublished disposition) that Tim's holographic will didn't satisfy the statute.  Maybe that was wrong.  And you can blame Justice Stratton and the panel in this opinion that held (in a published disposition) that a trial court hearing a petition to amend a holographic will can add a plethora of different words to such an instrument but not these particular twenty six characters.

Maybe only one of these is to blame, or two of them, or all of them.

But someone is indeed to blame.  Because this isn't a just result.  It's not justice.  It's not what we expect from a modern, enlightened set of legal principles.

It's what you'd expect to see in 1820.  Not today.

Thursday, May 14, 2020

Sosa v. CashCall, Inc. (Cal. Ct. App. - May 13, 2020)

This is why the are so few opinions about discovery in the Court of Appeal.

It's not that discovery is unimportant; it is.  It's also not that discovery disputes are rare; indeed, they are ubiquitous.

It's simply that most discovery disputes are relatively moot once the case gets to trial.  And, even if they're not moot, the Court of Appeal typically just doesn't care.  It doesn't feel like getting down and dirty into the pedantic details of who produced what and when and why.  Which means, in turn, that most parties don't raise routine discovery disputes on appeal, and when they do, they lose.

This case involves a lender (CashCall) who accesses credit reports about consumers.  Typically, in California, you're not allowed to do that without the consumer's consent.  Invasion of privacy and the like.  But there's an exception.  If you're making a "firm offer of credit" to the consumer, it's okay to pull their credit report in advance.  Otherwise, nope, can't do it, and you get spanked for statutory penalties of up to $2500.

It's undisputed that CashCall pulls credit reports of consumers without their consent.  For example, in April 2015 alone, it pulled nearly 370,000 credit reports.  In October 2015, it pulled another 250,000 reports; in March 2016, it pulled over half a million reports; and in March 2017, it pulled another half a million reports.

That's a lot of credit reports.

But CashCall said it was doing to to make a "firm offer of credit" to those consumers.  CashCall says that it selected a credit score range, and then got a million-plus names of consumers who were in that range (e.g., tolerable but not great credit), and sent all those consumers a "firm offer of credit" that said that CashCall was willing to make them a loan of "up $10,600" or so.  Hence, it says, what it did was legal.

There's some evidence that CashCall is telling the truth.  It almost certainly was willing to make loans to at least some of these people it contacted -- otherwise, why contact them?  But was it a "firm offer of credit" to everyone?  That's much less clear.  The letters it sent expressly said that the loan that was being offered was "not guaranteed" and depended on "certain criteria" in their credit reports, and that if those (unstated) "criteria" were no longer met, no loan would be offered.

So plaintiff sues.  She says that CashCall was just fishing, which isn't allowed.  Yes, you can access credit reports if you're making a "firm" offer of credit.  But, she alleges, that's not what CashCall was doing.  It was sending out letters to lots of people, she says, to whom it wouldn't actually make a loan of any type or amount, and that doesn't satisfy the statute.

Defendant eventually moves for summary judgment.  Its motion encloses examples of some of the letters it sent out (with the "no guarantee" and other language).  And it also includes a conclusory declaration of one of its employees that said that CashCall intended by its letters to make a "firm offer of credit" to each recipient.  A nice little declaration that simply mimics the language of the statute.

Here's where the discovery dispute comes in.

Plaintiff previously sent out interrogatory that said, essentially, "Of the million-plus people whose credit reports you accessed and to whom you sent these allegedly 'firm offers of credit,' how many of them actually took out a loan from you?"  Defendant refused to respond, plaintiff filed a motion to compel, and the trial court denied the motion, finding the information "irrelevant" to the case at hand.

Which it's obviously not.  Let's say they sent out a million letters and, in response, made a million loans.  That's strong evidence that they were making "firm offers of credit," no?  Similarly, let's say they sent out a million letters but only actually made a single loan.  That would in turn provide some evidence that they didn't really intend to make loans to everyone they contacted.  It wouldn't be conclusive, evidence, of course.  But it'd definitely be a disparity that required explaining.  It'd be some evidence that these allegedly "firm" offers of credit weren't so firm after all.

And, presumably, you'd follow up on whatever discovery response you received.  Let's say CashCall said in response "We sent 1.2 million 'firm offers of credit' and made 26,345 actual loans."  Now that you know how many loans they got, you'd then ask "Okay, so you made 26,345 loans.  How many 'Yes' answers did you get to your letters applying for those loans?"  If CashCall responded:  "We got 26,392 'Yes' answers," and we know they made 26,345 loans, well, shucks, then it looks like this case is a loser, and their alleged "firm offers of credit" really were firm offers, with just a small minority of loan applicants (47 of 26,392) falling out, presumably because some material change had transpired (a bankruptcy filing, a credit card default, a foreclosure, etc.) between the mailing of the letter and the "Yes" received in response thereto.  By contrast, if we know they made 26,345 loans, and then they tell us "We got 97,358 loan applications in response to our letters," well, now, the lawsuit is looking very good.  Because defendant's going to have a really hard time explaining why it made purportedly "firm" offers of credit and yet only actually funded a fairly small fraction of those loans.  That'd be an awesome set of facts for plaintiff.

Which is precisely what the majority opinion here holds (albeit in less excruciating detail than I've just articulated above).  Justice Moore says that you can't deny the plaintiff an opportunity to obtain relevant evidence in discovery and yet then, on summary judgment, dismiss the case because plaintiff doesn't have the type of evidence that you prevented them from obtaining in discovery.  Not fair, not equitable, doesn't work.

Which seems exactly right to me.  Totally correct adjudication.

Yet Justice Aronson dissents.  And his dissent proves precisely the point that I made at the outset of this post.

Because Justice Aronson's dissent is far from frivolous.  He says, basically:  "Wait a minute.  We review discovery rulings for abuse of discretion.  At worst, this one was close.  There were lots of reasons the request might not be all that relevant.  So it wasn't necessarily an abuse of discretion, so we should affirm.  Plus, even if it was, for discovery disputes, a plaintiff can only obtain a reversal if she establishes that the absent discovery more likely than not would have changed the result.  Which she can't do here, because there's no evidence that the discovery answer would have actually proved her case for her."  (Justice Aronson makes some other points as well, but I want to focus on the most doctrinally significant ones.)

Here's the thing:  Justice Aronson is right.  (At least in part.)  We do review these things for abuse of discretion.  Which is an awfully high standard.  Particularly when you're reading an expansive record on appeal and aren't all that interested in doing associate-level discovery work.  More critically, here, even if you're certain that the trial court has erred -- as I am -- how exactly are you supposed to prove that the error isn't harmless.  The whole point is that we don't know what the answer is.  If we don't know what their answer would have been, and some conceivable answers would have helped us but some possible answers would have hurt us, how the heck are we supposed to establish prejudice?  the fact that they didn't answer stops us from establishing the very thing that we're supposed to show?

Could plaintiff have propounded a narrower interrogatory?  Sure.  It could (and perhaps should) have simply asked (in essence) "What percentage of the positive responses to your alleged 'firm offers of credit' actually resulted in a loan?"  That's clearly relevant information.  It instead elected to obtain this information in two parts; first, by asking for the numerator (the number of people who got loans), and then (presumably) asking for the more discrete denominator (the number of people who applied for them -- as opposed to the number of people who got letters, which we already know) later.  Once the trial court refused to give you the numerator, however, there's no point in asking for the other figure (the denominator), since you can't construct the relevant figures at that point anyway.

So, yes, in the end, the majority actually reverses the decision below, in a rare victory based upon the denial of relevant discovery.  But that there's a dissent, that the dissent makes decent arguments, and that it takes a case like this one to actually get a reversal proves the point.  It's extraordinarily difficult to get relief on appeal for even the most egregious discovery error below.  Total longshot.

Now, between you and me, while I'm extremely happy that the opinion comes out the way it does, which I believe to be the right result, I suspect that CashCall will in fact prevail on remand.  (Which, in my mind, only makes it even sillier not to grant the discovery that plaintiff requested below.)  The rates that CashCall offered in their letters were both (1) in a range, and (2) shockingly confiscatory.  CashCall was offering to make loans at an APR that, the letters said, "range[] from 99.75% to 184.36%."  I think that CashCall is probably telling the truth when it says that it was indeed willing to make a loan at such an absurd rate to virtually anyone stupid (or desperate) enough to request it.  And in those rare occasions when it wasn't willing to act as a legally-permitted loan shark, I suspect that there were, indeed, likely good reasons for this unwillingness.  So, yeah, in the end, I think CashCall did probably make "firm" (though abusive) offers of credit.

But the point of discovery is to allow the other side to test the veracity of your self-interested factual assertions.  And that didn't happen here.  Hence the reversal to give the plaintiff another shot.

Even if one internally suspects (as I do) that the result will probably end up the same.

Wednesday, May 13, 2020

Zieve, Brodnax & Steele LLP v. Dhindsa (Cal. Ct. App. - May 13, 2020)

On one level, of course Justice Franson is right in this opinion.  You've got a property owned by multiple people on which there's a first mortgage (taken by all the owners) and then you've got a second mortgage that was taken out on the property by only 75% of the owners.  You can do that -- the 75% owners can (obviously) only encumber their share of the property, the encumber it they have.

Eventually the property goes into foreclosure and gets sold, and the proceeds are enough to pay off the first mortgage entirely (so that lender gets its money) but aren't enough to pay off the second.  So which of the following do you do:

(1) Give all the remaining money to the lender on the second mortgage.  Or
(2) Give 75% of the remaining money to that lender and 25% to the remaining owners who aren't liable for the second mortgage.

The answer, to me, is obviously (2).  My co-owners can't encumber my share.  So I don't care how much my idiot co-owners (or their lender) decided to encumber their portion of the property.  I'm still entitled to my 25 percent.  So if the property's worth $100,000, my share's worth $25,000, and that's how much I'm going to get once it's sold.  If my co-owners took out a $500,000 loan (or whatever) on their share, that's between them and their lender.  I get my $25,000, and the lender gets $75,000.  That is clearly the right result.  It's the lender's bad -- not my bad -- for loaning out more than the relevant share of the property was worth.

And that's got to be the law.  Otherwise, a 1% owner of a piece of property worth $1 million (so his share's only worth $10,000) could take out a $1 million loan all for himself and, boom, suddenly my 99 percent is worthless because in foreclosure the lender gets all $1 million and I get nothing.  Not equitable, and not the law.  As the Court of Appeal entirely correctly holds here.

All of this seems so obvious to me that I wondered how the trial court could possibly have gotten it wrong.  But then I read the facts, and understand (I think) why the trial court held the way it did, notwithstanding the fact that its approach remains wrong.

The slight complexity arises because the 25 percent "owner" here came to his share in an unusual (and arguably inequitable) way.  It's not that the 75% owners took out a loan totally unrelated to the 25% owner.  It's that the 75% owner (and the lender) thought they were 100% owners.  Here, the property was originally purchased by Father and Brother, 50/50.  But, later, Brother gave his 50% of the property to Father and Son equally -- which means Father then owned 75% and Son owned 25%. Son's at that point two years old.  Then, eight years later, Father and Son give back the whole of the property (all 100%) to Brother.  And, six years later, Brother -- who now owns 100% of the property -- takes out the second mortgage.

Except for one thing.  Son was only ten years old when he transferred the property back to Brother (his uncle).  But minors can't do that.  Not without jumping through some hoops that didn't transpire here.

Which is why Son owns 25% of the property.  Which, in turn, means that -- pursuant to the general rule -- Son gets his 25% of the remaining proceeds.  Even though that screws the lender a bit, who thought that Brother owned the whole thing (pursuant to the transfer).  And serves to benefit Son (and, perhaps derivatively, Father and Uncle) inequitably.

And that's why I think the trial court wasn't so keen on giving the 25% "owner" his share here.  Admittedly, I'm reading between the lines.  But I think accurately.

The Court of Appeal nonetheless correctly applies the actual law.  Son's a 25% owner.  So he gets his 25% of the remaining money.  That's hoses the lender a little bit, sure.  But next time it'll presumably pay a bit more attention to the preceding transactions involving the property to make sure that they don't involve a minor.

Right rule.

Tuesday, May 12, 2020

People v. Seo (Cal. Ct. App. - May 12, 2020)

Mr. Seo was going to be convicted on virtually any instruction given to the jury.  He was clearly making counterfeit currency, which is unambiguously a crime:

"Upon searching defendant’s motel room, the officer found several pieces of linen paper on the floor and in the trash can; one had an outline of a $20 bill on it. When the police searched the boxes and bags defendant had been loading into the car, they found a loaded handgun registered to defendant in a computer bag. They also found evidence defendant had been attempting to counterfeit $5 and $20 bills, including some pieces of paper with these denominations printed on them. Other pieces of paper had currency printed on them and had been cut into the shape of regular bills. One piece of paper had the front and back of a $20 bill copied on to it. Some versions of the bills were more complete than others as some did not have backs.

Defendant also had a piece of paper with four authentic $5 bills taped to it, a template, and this template had been copied onto linen paper using an inkjet printer. Linen paper is sometimes used in counterfeiting because its texture feels more like actual currency than basic printer paper. Additional pieces of linen paper, as well as a laptop computer and an inkjet printer, which is commonly used in counterfeiting currency, were found in defendant’s possession. Police also recovered four bottles of paint, paint brushes, a paint pen, and acetone nail polish remover. A United States Secret Service Special Agent with training in identifying counterfeit currency opined that the inkjet printer, linen paper, and acetone were items used in the manufacturing of counterfeit currency."

You're going to jail for that one, my friend.  (Albeit for only eight months, which is a fairly short sentence for this crime, IMHO.)  Not surprisingly, the jury convicted him.

But the question remains:  How exactly should we instruct the jury in these kinds of cases?  The Court of Appeal does a great job here explaining that the trial court's instruction was based upon a case from over a century and a half ago that both wasn't very helpful and was seemingly outdated.  As well as sets forth an alternative instruction that it suggests be used in future cases.

Great!  Definite extra credit points for Justice Ikola.  That helps to resolve both this case (in which any error was harmless anyway given the overwhelming evidence of guilt) as well as future cases.

Though I'm still left with the question:  So what is the means rea requirement for this stuff.

To which the Court of Appeal provides an answer.  But it's answer that's somewhat unsatisfying on a couple of different levels.

Mr. Seo says that the prosecution has to prove that he was (essentially) going to use this fake money; e.g., to defraud people.  But the Court of Appeal reads the statute and says that's not true; that there's a more general intent requirement.

And I understand where that concept comes from.  But it's one that's somewhat problematic.

So, for example, the Court of Appeal says that the prosecution isn't required to prove more specific criminal intent and instead need only prove that the defendant knew that the materials at issue (the printer, the ink, etc.) either "were or will be used in the counterfeiting of currency."  (Sample of that text in the opinion:  "Thus, to be convicted of violating section 480(a), a defendant must knowingly possess an item (die, paper, machine or apparatus) that he or she knew was or will be used in the counterfeiting of currency. . . . Thus, section 480(a) does not require a specific intent to do a further act or achieve a future consequence such as defrauding another.")

Let's take both parts of that, though.  Because once you strip out a requirement of future intent to commit a crime, it seems like there's potentially huge liability here.

First, the "were used" part.  According to the Court of Appeal, if I possess equipment that I know was ever used in counterfeiting, I'm guilty of a felony.  Even if I wasn't the one who counterfeited the stuff and even if I have no intent whatsoever to ever counterfeit anything.  I'm staring at a computer and printer in my office as I type this text.  Let's say that the University of San Diego told me:  "Oh, fun fact; we got those things at a police auction; they were formerly used by a notorious counterfeiter."  So now I'm guilty of a felony if I keep typing on the thing, right?  Similarly, if I go ahead and copy a $5 bill on the office copier (just for fun), and then tell everyone in the office "Ha, you can't use that printer anymore; if you do so, it's a felony," that works, right?  Seems weird.  Seems like the fact that I'm using something legitimately should make a difference, and I shouldn't be a felon just because I know that someone else in the past used the thing for a crime.  I'm not a felon just because I own a car that used to be owned by a bank robber who used it.  Why's my printer any different?

Second, the "will be used" part.  Now, if I'm going to use it to counterfeit stuff, yeah, definitely, I'm guilty.  Or ditto if I'm aiding and abetting someone.  But the Court of Appeal's decision goes further than that.  It says you're a felon if you possess the stuff knowing that anyone -- even people totally unrelated to you, and over whom you have no control -- are going to use the thing for counterfeiting.  So if I write a letter to Dunder Mifflin and say:  "You don't know me, but I'm going to buy some of your 9 x 12 paper to make counterfeit currency," and they believe me, then they're a felon unless they destroy all their 9 x 12 paper, right?  Since otherwise they're in possession of items that they know "will be used" to make counterfeit currency.  Or if I write an anonymous note to Kinko's that says "I'm positive that people are going to use one of your printers in the next 30 days to make counterfeit currency," then Kinko's is a felon unless it shuts down that department for a month or fails to have a supervisor actively watching the copiers the whole time to ensure that no illegal acts occur.  Because once you know that your product "will be" used for a crime, you're liable too unless you either actively stop the office or affirmatively dispose of the item(s).  That, too, just seems way to broad to me.

I get that there are certain things the possession of which we criminalize (e.g., stolen cars) even if the possessor didn't do the actual stealing.  But I didn't think that non-stolen items (e.g., printers or paper) that have entirely legitimate uses and that are being used entirely legitimately fell into that same category.  And I'm somewhat horrified to discover from today's opinion that, at least according to the Court of Appeal, I'm wrong.  You're a felon if you know that your computer or printer ever was or ever will be used to counterfeit something -- even by someone totally not under your control (e.g., a thief in the night).  Wow.  Crazy.

And I'm not even entirely sure why we want (or need) to push the law that way.  Mr. Seo would have been convicted even if the prosecution had to prove he intended to make make $5 bills to defraud people.  'Cause that's what he clearly was doing.  Ditto for pretty much everyone who's caught making counterfeit currency.  Why press the law so far to make a plethora of innocent people felons?  Doesn't seem necessary.

But there you have it.  After today, anyway, criminal liability for this stuff is a lot, lot broader than I suspect most everyone otherwise thought it would be.

Barber v. USDC San Francisco (9th Cir. - May 12, 2020)

Congress can let crime victims petition for a writ of mandamus, and it can also require the Court of Appeals to resolve the writ within 72 hours (!) and to do so in a "written opinion" that "clearly states" any reasons for denial of the writ.  (Section (d)(3) of the statute.)

But what Congress can't do -- or at least hasn't done -- is to make the Court of Appeals write anything more than a brief paragraph.

Which is why today's per curiam opinion states, in full:

"This is a petition for a writ of mandamus filed pursuant to the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771. We have carefully reviewed the district court record and the arguments of the parties, and hold that the district court did not abuse its discretion in determining the amount of restitution to which Barber is entitled. The district court's finding that the prior civil settlement reduced the amount of Barber's loss was supported by the evidence and was neither an abuse of discretion nor legally erroneous. See Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006). The petition for a writ of mandamus is denied. DENIED."

So there.