Friday, July 13, 2018

L.B. v. M.B. (Cal. Ct. App. - July 13, 2018)

I'm all in favor of using abbreviations to shield the identity of litigants in appropriate cases.  So even in a civil case (as here), if there are allegations of domestic abuse, personal sexual conduct, etc., and there's a minor child involved, it generally makes sense to omit the actual names of the parties.

Yet this is one of those rare cases in which doing so makes little sense.

The nanny is L.G., the (ex-) wife is M.B., and the (ex-) husband is S.B.  It's a celebrity couple and their nanny, with Wife saying that Husband had sex with Nanny, got her pregnant, etc.  Nanny then sues Wife for defamation and other torts, Wife files but loses an anti-SLAPP motion, and Wife then appeals.

All lurid stuff, with more in the actual opinion, so you can well understand why the Court of Appeal employs initials.

Though it merits mention that this stuff is all over the press anyway.  Like, everywhere.

Unless it just so happens that this is merely one of several nanny-threesome-lawsuit-disputes involving people with the initials L.G., M.B., and S.B. that doesn't involve Lorraine Gilles, former Scary Spice Melanie G., and Stephen Belafonte.  In which case, yeah, definitely use initials.

P.S. - FYI, "M.G." loses her appeal.


Thursday, July 12, 2018

People v. Torres (Cal. Ct. App. - July 12, 2018)

See whether you think this is (1) awesome police work, or (2) an interrogation that convinced a 73-year old Mexican immigrant to falsely confess to molesting a child.  I can see strong arguments on both sides.

The elderly man at issue was clearly not sophisticated (a huge understatement).  The police took advantage of that by repeatedly lying to him and convincing him that because the "science" would clearly prove him guilty, his only way "out" was to say what the police were telling him he had to say.  Which he then did.  You can definitely see how this might result in false confessions.  And it's not like there's a ton of other evidence that the guy in fact molested the four-year old girl at issue.

At the same time, maybe the guy is guilty, and the police got him to incriminate himself.  Perhaps accurately.

It comes down, I think, to a value judgment about what level of risk you're willing to take that you are encouraging false confessions.  (The theory that we can just admit the evidence and "let the jury sort it out" seems both a cop-out and demonstrably false.)  If you care deeply about not putting an innocent person in prison, I think that interrogations like this one have to be stopped.  But if you're willing to run a 10% (5%? 1%?) risk of a false confession, then I can see why you'd let this stuff go on.

Ultimately, here, the Court of Appeal holds that the present facts are pretty darn close to a prior case that held that the interrogation was custodial, so it was ineffective assistance of counsel not to try to exclude the confession (since there were no Miranda warnings).  But the broader issue remains.  Say the police had indeed given the warnings.  Which I have no doubt would not have mattered in the slightest to what the elderly man in fact did here.  Are we then totally fine with police methods like these?

Wednesday, July 11, 2018

Richardson v. DMV (Cal. Ct. App. - July 11, 2018)

Yes, the 93-year old woman at issue had a history of causing accidents.  Yes, the DMV suspended her license previously, and yes, I'm confident that other DMV employees may not have passed her on her final driving test.  And, yes, she hit the plaintiff on his motorcycle and caused serious injuries.  ("The accident severed Richardson’s left leg, broke his right leg and pelvis, damaged his spine, and left him paralyzed from the waist down.")

But there's a specific statute that immunizes the DMV for liability for making alleged mistakes in the issuance or licenses.  So it rightly obtains summary judgment.

Sorry about that.  But it's the law.

Tuesday, July 10, 2018

U.S. v. Hernandez (9th Cir. - July 10, 2018)

It's bad enough when you sleep with a 17-year old minor you coach in club softball.  You only make it worse for yourself when you exchange intimate photos with her.  Because that constitutes child pornography.

And the whole shebang gets you over 23 years in prison.

National Asian American Coalition v. Brown (Cal. Ct. App. - July 10, 2018)

Today the Court of Appeal decides the fate of $331 million held by the State of California.  And directs that it be transferred out of the state's General Fund and back into the National Mortgage Settlement Fund.

A pretty hefty chunk of change.


Monday, July 09, 2018

U.S. v. Obendorf (9th Cir. - July 9, 2018)

This is not the most monumental Ninth Circuit opinion you'll ever read.  About a misdemeanor conviction, no less.  So you can survive and flourish the rest of your life even if you never come across it.

But if you're a city kid like me, you'll nonetheless learn something if you take a gander.  Since it's abut baiting ducks.  Something I didn't know a lot about before today.

It's a case from Idaho (of course).  It involves the intersection between people who like to kill ducks for sport and federal laws that try to regulate this practice:

"Obendorf’s farm lies just north of the Boise River, near the town of Parma, Idaho. Hundreds of thousands of ducks pass by the farm during their annual migration each fall. One of Obendorf’s fields is about fifteen acres in size and planted with corn. It has come to be known as the duck field . . . .

A few times a year, federal agents from the U.S. Fish and Wildlife Service (FWS) patrol the river valleys of southwestern Idaho by airplane, looking for signs of waterfowl baiting. On November 15, 2013, FWS Special Agent Scott Kabasa and two of his colleagues flew over Obendorf’s farm. Such flights are routine, but Kabasa paid special attention to Obendorf’s farm during the November 15 flight because he had received a number of tips that Obendorf was baiting ducks on his property. As the plane passed over Obendorf’s farm, Kabasa noticed several large piles of corn in the duck field, including a pile near a hunting pit blind. Kabasa also noticed the duck field had been harvested differently from other fields on Obendorf’s farm. Most of Obendorf’s cornfields were fully harvested, but the duck field was “strip combined”—meaning it was harvested in alternating strips such that many rows were left untouched.

That night after dark, Kabasa and Brian Marek, a conservation officer with the Idaho Department of Fish and Game, snuck onto Obendorf’s farm to take a closer look. Kabasa and Marek counted six large piles of loose corn kernels on the duck field, including one “within shot-shell range” of the pit blind. They also inspected the stripcombined rows in the duck field and observed “an exorbitant amount” of corn kernels littering the ground under the stalks. Kabasa later testified that “the vastness of the corn that was on the ground was unbelievable.” The agents walked Obendorf’s other cornfields, which, unlike the duck field, appeared neatly combined and fully harvested."

So the authorities investigate further and eventually charge (and convict) Mr. Obendorf.  Which leads to today's Ninth Circuit opinion by Judge Christen.  Who writes a 23-page opinion about the relevant statutes and regulations that ends with:

"The Migratory Bird Treaty Act regulations do not create a regulatory exception to the MBTA’s ban on unlawful baiting. Obendorf was charged with unlawful baiting, not unlawful hunting, so 50 C.F.R. § 20.21(i)(1) could not have immunized his conduct. Although the parties misapprehended the law below, any error was harmless. Accordingly, Obendorf’s conviction is AFFIRMED."

So slightly safer to be a duck today in Idaho.

Slightly.

Thursday, July 05, 2018

Jameson v. Desta (Cal. Supreme Court - July 5, 2018)

Good news for indigent litigants, who will now get a court reporter (for free) even in those courts that have done away with official court reporters.

Slightly bad news for non-indigent litigants.  As footnote 18 of the opinion suggests that that it'll be the opposing (non-poor) parties who'll pay for that official reporter.

But a unanimous opinion demonstrating that the California Supreme Court continues to care about the quality of justice dispensed to indigent litigants.

Monday, July 02, 2018

Brown v. Smith (Cal. Ct. App. - July 2, 2018)

Some summaries are concise and to the point.  Those are awesome.  But sometimes they do even more.  Maybe even give some historical background, discuss precedent, etc.

Today's opinion is a good example of the latter category.

Here's how Justice Grimes begins the opinion.  One that's important in its own right on the merits, but also a great example of style:

"In 1890, the California Supreme Court rejected a constitutional challenge to a “vaccination act” that required schools to exclude any child who had not been vaccinated against small-pox. (Abeel v. Clark (1890) 84 Cal. 226, 227-228, 230 (Abeel).) In dismissing the suggestion that the act was “not within the scope of a police regulation,” the court observed that, “[w]hile vaccination may not be the best and safest preventive possible, experience and observation . . . dating from the year 1796 . . . have proved it to be the best method known to medical science to lessen the liability to infection with the disease.” (Id. at p. 230.) That being so, “it was for the legislature to determine whether the scholars of the public schools should be subjected to it, and we think it was justified in deeming it a necessary and salutary burden to impose upon that general class.” (Ibid.)

More than 125 years have passed since Abeel, during which many federal and state cases, beginning with the high court’s decision in Jacobson v. Massachusetts (1905) 197 U.S. 11 (Jacobson), have upheld, against various constitutional challenges, laws requiring immunization against various diseases. This is another such case, with a variation on the theme but with the same result.

We affirm the trial court’s order dismissing plaintiffs’ challenge to an amendment to California law that eliminated the previously existing “personal beliefs” exemption from mandatory immunization requirements for school children."

Nicely done.

Tuesday, June 26, 2018

FHLMC v. SFR Investments Pool (9th Cir. - June 25, 2018)

That's strange.  I've never seen something like this before.

Yesterday, the Ninth Circuit said that it published the opinion in Case No. 16-15962.  The opinion remains listed on the daily list of published cases.

But today, when you click on the link, all you get is a Ninth Circuit "404" reference, saying "Sorry, the page you tried cannot be found."

Even though the opinion remains available on Westlaw and on a cache via Google.

Opinions rarely just disappear from the Ninth Circuit web site.  (Though maybe there was an intervening technical error?)

Regardless, for now, the opinion is no longer there.






Peralta v. Vons (Cal. Ct. App. - June 26, 2018)

This is a lot of litigation over a slip-and-fall at a Vons.  Particularly since (1) the plaintiff didn't see anything that she slipped upon, (2) there was allegedly a store inspection of that exact area eight minutes before the fall, and (3) the plaintiff was wearing three-to-four inch stiletto heels at the time she fell.

In any event, Vons gets summary judgment, and the Court of Appeal affirms.

Monday, June 25, 2018

Moofly Productions v. Favila (Cal. Ct. App. - June 22, 2018)

I know you want to sanction the other side for filing a frivolous motion for reconsideration under CCP 1008.  Those motions are, indeed, occasionally frivolous.  And, yes, the statute provides for sanctions under such settings.

But such sanctions are only permitted when "allowed by section 128.7."  Which -- sadly, for you -- means you've got to provide the other side with the requisite 21-day safe harbor.

Sorry about that.

Thursday, June 21, 2018

People v. Cortez (Cal. Ct. App. - June 20, 2018)

The first sentence of this opinion is somewhat funny.  Not "ha-ha" funny, but instead, slightly remarkable (or at least worth notice).

It reads:  "Defendant and appellant, Anthony Esparza Cortez, Jr., a convicted felon, and his friend, Michael Saavedra, conspired to commit murder against Rene Perez, and his sonin-law, Alvino Barrera."

It's funny because even though there are plenty of published opinions about murders, I don't usually see the Court of Appeal say that someone "conspired to commit murder against" someone.  Usually the justices just say "conspired to murder" that person.  No "commit" or "against".

Indeed, as far as I can tell, in no reported or unreported opinion in history has any California court ever used the phrase "conspired to commit murder against" someone.  Nor, my research reveals, has any brief, secondary source, or anything ever employed this phrase before this opinion.

Not that there's anything wrong with the phrase.  I know exactly what it means.  And we often say that someone "conspired to commit a crime against" someone else.  Nothing wrong with replacing "a crime" with a particular crime; here, murder.

Still, it's unusual.  Some extra words we don't usually see.

So I dug even deeper.  And I'm not 100% sure about this, but the only use of this phrase in all of recorded American jurisprudence before this opinion is its use by non-lawyers and non-judges; in particular, by a gang leader in Texas when pleading guilty ("I conspired to commit murder against other DMI members for sanction, violations and so forth."), by a pro se litigant in his handwritten complaint against various defendants ("all parties conspired to commit murder against me"), and by a pro se litigant in Newport Beach in a petition for certiorari to the United States Supreme Court in which he raises 58 "Questions Presented," alleges that AT&T is "the biggest terrorist organization in the world," and ends his lengthy petition by saying "the Defendants have conspired to commit Murder against the Petitioner Anthony Martini and the Defendants are accomplices to Murder, Kidnapping and made the Petitioner permanently disabled for the rest of his life being in pain 24/7."

Fine company indeed.

Regardless, again, I know what the sentence means, so no biggie.  Just a couple of extra words we usually don't see.

Tuesday, June 19, 2018

Hipsher v. LA County Employees Retirement Ass'n (Cal. Ct. App. - June 19, 2018)

This is unusual.  Someone convicted of "directing an offshore gambling operation" under 18 USC 1955.  Don't see that very often.

But it gets weirder.  The perpetrator:  An L.A. County firefighter, Tod Hipsher.  Who apparently used a room in the fire station to conduct his offshore gambling operation.

When there was a problem with collecting unpaid gambling debts of the bettors, who did he use?  Employees of the Department of Homeland Security and the Orange County District Attorney's Office.  Stranger still!

And this lawsuit?  His challenge to the reduction in his pension that was applied due to the misuse of his office.

Weird stuff all around.


Monday, June 18, 2018

U.S. v. Espino (9th Cir. - June 18, 2018)

When I prepare final exams, I find it's sometimes difficult to create fill-in-the-blank short answer questions that are uniformly perfect.  Ditto for multiple choice questions.  Sometimes unexpected ambiguities creep in notwithstanding one's best efforts.

The same's true for verdict forms.

The district court here gave the jury a verdict form that read:  “We the jury in the above entitled cause unanimously find, beyond a reasonable doubt, that the defendant, Flora Espino is: ________ of providing materially false testimony to the Grand Jury.”

The jury deliberates an hour before finding her guilty.  Which, parenthetically, it seems like she totally was.

She then appeals, claiming that the verdict form improperly shifted the burden on her to prove that she's not guilty.  Which is right.  Because, under the form, in order to fill in the blank with "not guilty," the jury would technically have to find her not guilty "beyond a reasonable doubt" -- rather than just finding her not guilty because the prosecution hadn't established its case beyond a reasonable doubt.

But the Ninth Circuit finds the error harmless, because the jury instructions made the proper burden totally clear.

And, I suspect, the fact that the jury had no trouble whatsoever finding Ms. Espino guilty played a part in the harmless error finding as well.

Life lesson for the day:  Don't lie to a grand jury.  Take the Fifth if appropriate.

And, if you're a district court, maybe double check your written work.


People v. Orozco (Cal. Ct. App. - June 18, 2018)

"On August 7, 2014, the police pulled Orozco over and a routine license plate check showed the car Orozco was driving had been reported stolen. Orozco was the vehicle's sole occupant, the car's ignition was damaged, and it was running without a key. The police report listed the car's value at $301."

A running vehicle that's only worth $301?!  A car that's worth only $301 and yet someone bothers to steal it?!

I wouldn't believe either proposition if I didn't see it in print.

Thursday, June 14, 2018

People v. McVey (Cal. Ct. App. - June 12, 2018)

You're outside an adult bookstore in Hollywood, with a semiautomatic pistol in your waistband, when you buy $40 worth of cocaine from two guys who walk up to you.  Once they leave, you realize that it's just powdered sugar.

So you're upset.  A short time later, a block away from the scene, a homeless guy comes up to you and asks you for some change.

So you pump seven gunshots into the guy, killing him.

Not a good day.  For anyone.

Wednesday, June 13, 2018

Shiver v. Laramee (Cal. Ct. App. - June 12, 2018)

This might be the most personally important case in the Court of Appeal you read this year.  It's also one that conflicts with everything I've ever been taught about driving on the highway.

Here are the basic facts -- simplified for easy reference:

Trucker is driving on the slow lane of a highway.  Two cars -- one driven by Man, another driven by Woman -- are on the on-ramp, getting onto the highway.  Man passes Woman on the off-ramp, flips her off, they both get on the highway in front of Trucker, and then Man slams on his breaks.  Woman slams on her brakes in response, and avoids hitting Man, but Trucker can't stop in time, so rear ends Woman.  Man flees.  Woman sues Trucker for hitting her.

Who wins in Woman's lawsuit against Trucker?

Woman says she's not at fault since she had to (and did) brake, and that Trucker's at fault because he didn't leave enough distance to avoid the rear-ender.

Trucker says he had no reason to expect sudden braking on the highway, so he's not at fault.

You're the judge.  For whom do you rule?

The Court of Appeal says Trucker wins.  Pursuant to the "Sudden Emergency" (aka "Imminent Peril") doctrine.

That's not the rule that I thought governed this situation.  Nor am I certain it's one that makes doctrinal (or, perhaps, policy) sense.

I was always taught that you had to keep enough distance from the car in front of you to stop in time.  Period.  That way, if a kid (or squirrel, or whatever) runs into the street, and the car in front jams on its breaks, you won't rear end them.  It also has the advantage of a nice, bright-line rule.  When you rear end someone, it's almost by definition your fault (unless they backed up).  Easy to apply.

The rule that I thought existed also has a textual support:  Section 21703 of the Vehicle Code.  Which indeed requires that you maintain a reasonable distance from the car in front of you.

This opinion, by contrast, decides the other way.

I can empathize with at least part of the opinion's reasoning.  I can understand why the Court of Appeal might not want to find Trucker at fault.  Who expects someone to suddenly stop in front of you?!  Especially when it's the result of a third party's road rage?  It does indeed seem a little unfair to hold Trucker liable for something he had no substantial reason to expect, so essentially punishing him by imposing tort liability may seem a bit (or perhaps a lot) unfair.  (Mind you, the person who was rear ended was totally innocent, and she hit the brakes in time, so making her solely responsible for her injuries seems even worse than holding Trucker responsible.  So, even ignoring the existence of insurance -- another reason to potentially foist relative liability upon Trucker -- if I had to make a policy choice, I'd probably lean against creating today's rule that absolves Trucker of liability.)

But there's a harder, more concrete, point as well.  There's a statute that governs this thing.  One the Court of Appeal doesn't (in my mind) successfully address.

Section 21703 affirmatively says that, yeah, you indeed have to keep a reasonable distance from the car in front of you, and "reasonable" probably does indeed mean -- and a jury could surely so decide -- that you gotta be able to brake in time in the car in front of you suddenly stops.  Seems dispositive of the relevant rule, no?

Justice Yegan's opinion has a "creative" response to this statutory dictate.  He says (with emphasis in the original):

"Laramee [the Trucker] was under no duty to leave “a proper space cushion.” Vehicle Code section 21703 provides, “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon, and the condition of, the roadway.” (Italics added.) Laramee was not following appellant. Laramee was driving in the #3 lane of the freeway, and appellant was driving in the adjacent on-ramp lane."

On that theory, since Trucker was not "following" the person who he rear ended, Section 21703's statutory dictate ostensibly doesn't apply.

But -- with respect -- I don't think that's the right way to read Section 21703.

Appellant was indeed in a different lane (i.e., on the on-ramp) at some point.  But Trucker and the guy who was rear ended were (definitionally) in the same lane later, including at the relevant point (when they hit).  So Trucker was indeed "following" the car at that point.  "Following" in Section 21703 clearly does not mean "following" in the usual sense of "going wherever he goes".  It means "behind".  If you're behind another car, you have to leave a cushion.  So once Car came into Truck's lane, Truck has to leave a sufficient cushion.  Which he didn't.  Ergo liability under Section 21703.  Since that's what the statute says.  If you're "behind" a car, you shall not follow it more closely than reasonable.  Truck was behind Car.  So Truck's gotta leave space.  Which is what we're indeed taught when we first learn to drive, and a bright-line rule.

(Plus, it'd seem silly to hold -- as the Court of Appeal implicitly does -- that in the usual setting, 99% of the time, when a car rear-ends another that suddenly stops, there's liability, since they were both in the same lane, and hence one was "following" another, but when someone has just merged or is only halfway in a lane, all of the sudden that immunizes the other driver from a virtually identical rear end accident.  If it's reasonable to think that a guy won't instantly slam on his brakes, that's reasonable if he's just merged, or halfway (or all the way) in a lane, or has been in the same lane as you forever.  I strongly doubt the Vehicle Code intended the common law "Sudden Emergency" doctrine to govern only one, but not the other, of these scenarios.)

I can understand that there's a potential line-drawing complexity here.  Section 21804 of the Vehicle Code does indeed say that someone who's merging has to yield the right of way to the person who's already there.  So you gotta figure out at what point the "spacing" requirement is the responsibility of the merging car or the responsibility of the "following" car.  But, at best, that seems to me to indicate that both cars might potentially be contributorily negligent.  Not that the following Truck that can't brake in time totally gets off the hook.

(Can I just add, by the way, that the absolution of the Trucker here seems especially unjust.  Here's what Trucker says at his deposition:

“[W]hen you got onto the southbound 101, were you on your cell phone?” Laramee replied that he was not on his cell phone. He had a wireless Bluetooth “hands-free” phone in his cab. (Vehicle Code section 23123, subdivision (a) permits the use of a hands-free wireless phone while driving.) Appellant’s counsel asked, “Were are [sic] you talking” on the “hands-free?” Laramee replied, “Yeah, I was talking.” Respondents’ counsel interrupted, “Were you actually actively in a call when you got on the freeway, or do you remember?” Laramee replied that he did not remember."

So the guy admits that he "was talking" on the "hands-free" but says he "can't remember" whether he was "actively" on a call.  To me, that's way more than enough for a jury to find that Trucker was on the phone, distracted, and that this may have played at least a part in why he wasn't able to stop in time to avoid rear-ending the person in front of him.)

In short, I agree that Road Rage Driver is definitely at fault, and if we could find him, I'd definitely spank him.  Hard.  Maybe Woman Who Was Hit (in our hypothetical) is also at part at fault, either because she merged in a bit too close to the Truck behind her (so he couldn't stop in time) or because she was too close to the car in front of her to "slow down" easily instead of having to slam on her brakes (and hence getting hit from the car behind her).

But to absolve the Truck driver entirely -- much less as a matter of law -- seems somewhat wrong to me.  Probably from a policy perspective, and most definitely from the perspective of our existing Vehicle Code.

I think we probably do (and should) have a rule that was similar to the one I always thought existed:  That you have to give yourself enough time and room to stop if the vehicle in front of you jams on its brakes, whether for a rabbit, a kid, a ball, or a third party road raging (or incompetent) driver.  If you don't, you're potentially at fault.  Perhaps alongside other people as well.  But fault on your part there may well nonetheless be.

Even though the Court of Appeal holds to the contrary here.

But, hey, unless the California Supreme Court wants to take up a case about a simple driving matter, as of this opinion, the law is what the Court of Appeal says it is.  If you don't feel like leaving enough room to stop, I guess go ahead.  The Court of Appeal will have your back.  Even if you end up hitting a guy from behind because you can't stop in time.

Tuesday, June 12, 2018

People v. Killion (Cal. Ct. App. - June 11, 2018)

Sometimes signalling your willingness to be reversed helps the Court of Appeal.  If only because it assists them in writing an incredibly short opinion.  For example, here, the appellate opinion is only seven double-spaced pages long.  The majority of which merely recites the facts and history of the case:  the reasoning itself entails a mere three pages of text.

What the trial court says below is exactly what you're looking for if you're on the losing end of its decision.  For example:

"I would not take any offense if you choose to seek some review and get some guidance from the [Fourth District Court of Appeal] so that we can have a case that specifically states one way or the other."

Or, when talking to the defendant:

“I want you to know . . . losing this motion has nothing to do with how I think you’ve done on probation. I think you have done an exemplary job on probation. You’ve done everything that you promised the Court that you would do. If I did have the discretion, this is something that I would strongly consider doing for you, but I don’t believe that I have the legal ability to do it.”

Or, when talking to her attorney:

“If [defense counsel] proves to me that I’m doing it wrong by getting the judges down the street to tell me I’m wrong, again, I’ll be happy to reconsider it.”

You gotta love it when a trial judge tries his best but is modest enough to recognize he might be wrong and happy to hear a contrary decision from the Court of Appeal.

Monday, June 11, 2018

Campbell v. State of Hawaii DOE (9th Cir. - June 11, 2018)

It's not a term that I use much (if at all) in modern parlance.  But I admit to having used it on occasion in the past.  And until today, I didn't realize that it might have an offensive meaning.

Today's opinion is (in part) about what it means to "rag" on someone.  As in:  "She was ragging on the security guard."  We all know what that means:  to berate, to torment, or (to use another modern term) to "get on someone's case."

But the plaintiff here says it's also discriminatory.  That it relates to someone being "on the rag;" i.e., concerns a woman's menstrual cycle.  So when the principal here wrote the teacher up for "ragging" on someone, she says that's evidence of discrimination.

Here's what Judge O'Scannlain says about that:

"Campbell [the teacher] argues that Jones [the prinicpal] created a hostile work environment when he chided Campbell for “ragging” at students and staff. A memorandum formally reprimanding Campbell for these actions stated that she “verbally ragged” a security officer and students, and it instructed her not to address people on campus “in a yelling or ragging manner.”

Campbell argues that Jones’s use of the phrase “ragging” or to “rag” on or at someone was sexually motivated and offensive. Namely, she contends that these comments are tantamount to the phrase “on the rag”—a phrase both sides concede can be a crass and insulting way to refer to a woman’s menstrual cycle. She argues that a reasonable jury could therefore conclude that Jones’s use of such language created a sexually hostile work environment. We disagree.

[] Campbell’s argument entirely disregards the difference between the well-known phrase to “rag” or “rag on” something and the potentially offensive phrase “on the rag.” As both the DOE’s investigator and the district court found, the distinction is critical. The phrase to “rag” something is not at all offensive; it simply means “rail at” and “scold” or “torment” and “tease.” Rag, MerriamWebster Dictionary, https://www.merriamwebster.com/dictionary/rag (last visited May 29, 2018); accord Rag, Oxford English Dictionary, http://www.oed.com/view/Entry/157425 (last visited May 29, 2018). Webster’s gives a perfectly benign example: “[S]everal readers called in to rag the editor for his paper’s repeated grammatical lapses.” Rag, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/rag (last visited May 29, 2018). Campbell points to nothing that would contradict this well understood meaning of to “rag” or “rag on” something. Instead, she conflates the phrases, repeatedly citing sources that recognize the offensive nature of specifically saying that a woman is “on the rag,” but which say nothing of the phrases Jones actually used."

I totally get that point.  When, in my (relative) youth, I would say that someone was "ragging" on someone, I definitely didn't mean (at all) to refer -- or have any connection to -- menstrual cycles.  It was not even a gender-specific or -preferring term; indeed, I only recall using it to describe men.  So my contemporary understanding of the term was indeed as Judge O'Scannlain describes it.

But I wonder if that's really the end of the matter.

Because terms can have particular content even if the speaker doesn't intend it.  Particularly when we're talking about things that may be intrinsically discriminatory.  Tons of examples come to mind:  witness the contemporary debates, for example, about "niggardly" or "calling a spade a spade."  The closest analogy to today's opinion might be calling someone "hysterical."  You can definitely say -- as Judge O'Scannlain does here -- that the term has a "neutral" meaning.  But you can also definitely say that it has a discriminatory origin and meaning.  Just as with "ragging," maybe the origin (or history) of the word matters.  Or maybe it doesn't. 

But, at a minimum, I don't think it ends the debate simply to say that the terms are "different" and so you're improperly "conflating" the two.  For my own purposes, I'm probably educated by thinking about today's opinion, and will not knowingly use the term "ragging" in the future as a result.  Given the background and potential impact on the listener, saying "torment" or "rail at" or any of the other dozen or so perfectly-good-enough synonyms for "ragging" seems superior.

Which doesn't answer the question that Judge O'Scannlain has to resolve:  whether the word has a discriminatory effect, or can create a hostile work environment.

But it does help at least me decide what words to employ in my own life.

Thursday, June 07, 2018

Ellis v. Harrison (9th Cir. - June 7, 2018)

Today presents a per curiam opinion in which all three members of the panel concur and say that but for prior circuit precedent, they'd reverse.

Fairly unusual.  Albeit in an unusual case, in which an African-American LWOP prisoner who had two mistrials and two hung juries (ultimately being convicted the fifth time around) has powerful evidence -- from his lawyer's daughters, no less -- that "his trial attorney held deeply racist beliefs about African Americans in general and him in particular."

Not your usual Ninth Circuit opinion.  Either procedurally or with respect to substance.

In re Jensen (Cal. Ct. App. - June 7, 2018)

I had to wait twenty pages until the Court of Appeal finally answered the question that was foremost in my mind.  But then I finally got to it:  "D. Our Interpretation of Section 3051 Does Not Give Youth Offenders a “Free Pass” to Commit Crimes in Prison."

Except it sort of does.  Sort of.

The Court of Appeal says that you don't have to serve the sentence(s) imposed upon you for your in-custody adult offenses if you're found "suitable for parole" for the serious crimes you committed when you were a minor.  For example, in the present case, Mr. Jensen was sentenced to 25 years to life for first degree felony murder, an offense he committed when he was 19.  Then, in prison, he assaulted a guard with a deadly weapon, and was also convicted of prison escape and possession of a weapon.  He received a total of 7-plus years for those adult offenses.

Since he was a kid when he committed the "main" offense, he's entitled to an eventual hearing to get released when he's "suitable" for parole.  After a long time, the parole board finally concludes that Mr. Jensen satisfies these guidelines -- though he had trouble in prison early on, he's been discipline-free for a while, so they think he's changed, and ready to be let out.

The question then becomes:  Does he then have to serve the 7 years for his adult in-custody offenses?

The Court of Appeal says he doesn't.  The dissent says he does.

Section D of the opinion is all about the incentive effects of today's holding.  The Court of Appeal says that an offender will still have good reason to be nice in prison because any offenses therein will still go towards his eventual "suitability" for parole in the long term.

As I said before:  Sort of.

It's true that you wouldn't want to keep committing crimes in prison forever, because then the Parole Board would never conclude that you've been rehabilitated.  But that doesn't mean that this decision doesn't give you a little bit of a free pass.  It does.

Because while you need to stop committing crimes in prison at some point to demonstrate that you're now suitable for parole, that's only at the end.  Take the present case, for example.  Sure, Mr. Jensen eventually had to be good -- for a long time, even -- to demonstrate that he should be let out.  But at the outset, under today's decision, there's very little reason for him to refrain from committing further crimes in prison.  He's convicted for a murder when he's 19 and sent to prison.  Why not stab a guard as well when you're 20?  Sure, you might be sentenced to another 10 years.  But as long as you then "stay clean" for, say, another 20, the fact that you stabbed a guy 20 years ago doesn't really matter at all to the eventual suitability determination.  It doesn't add anything at all, really, to the preexisting fact that you murdered someone a year earlier.  It's just what you did "a long time ago," so if you do not have to serve your sentence for that additional offense, that's pretty much the definition of a "free pass" to commit additional crimes.

Do you eventually have to stop stabbing people?  Sure.  If you stop stabbing them earlier, will you maybe get a slightly different suitability date?  Maybe.  So there may be some incentive effects that remain after today's opinion.

But there's still a bit of a "free pass," especially early on in your initial sentence.  And in any event, we shouldn't expect prisoners -- much less kids convicted of serious offenses like murder -- to be completely and totally rational in their decision calculus.  I can easily see someone telling a kid who has just recently been sentenced to prison:  "He's a shank.  Stab the guy.  Even if you're caught, you won't have to do the time.  Read this opinion."  Prison lore ain't exactly perfect.  I could easily see a youthful offender thinking that, yeah, there's no real downside to committing the offense, and hence doing so -- or at least being marginally more willing to do so -- after this opinion.  Especially since kids aren't exactly awesome at long-term reasoning or at recognizing subtle eventual consequences.

So, yes, maybe it's inaccurate to say it's a total "free pass" to commit future crimes.  But it's certainly a heavily discounted pass.  And, in some cases, may well entail a completely free pass as well.

Either of which you'd expect to have actual consequences in the long term.

That's not to say the Court of Appeal's statutory analysis is necessarily wrong.  There are two statutes here that at least facially conflict, and you've got to make sense (if you can) of both of 'em.  That you think that reading 'em one way will result in certain policy consequences doesn't necessarily decide how they get read.

But you do have to recognize the likely results of your holding.  And, on that point, I'm not entirely certain that section D of this opinion is entirely persuasive.  Because it will result in more crimes via diminished incentives.  Of that I'm relatively confident.

Technical "free pass" or no.

Tuesday, June 05, 2018

Moldex-Metric Inc. v. McKeon Products (9th Cir. - June 5, 2018)

Yes, it makes sense that foam safety earplugs might entail bright, vibrant colors so outside observers can know that the user's wearing 'em.  That's called "functionality."  But McKeon's earplugs happen to be the same fluorescent-lime color as the 1.6 billion pairs of earplugs sold by Moldex-Metric.  A reasonable jury might conclude that's a trade dress violation.  Since there are lots of other vibrant colors that one might potentially use other than fluorescent-lime.

The Ninth Circuit says that same thing today, albeit in nineteen single-spaced pages.

Monday, June 04, 2018

In Re Marriage of Spector (Cal. Ct. App. - June 4, 2018)

It's only common sense that if a court makes a mathematical error in its order that it should be able to quickly and easily correct the mistake.  In this particular case, it's a spousal support order, one of the parties notices it and e-mails the judge (and opposing counsel) the next day, the judge says "Yeah, by bad, looks like my math is off," tells everyone she's thinking about correcting the thing, lets the parties submit short briefs if they feel like it, and then issues an order that corrects the mistake.

That's exactly the kind of speedy and accurate justice you'd think we'd prefer.

Yet it takes the Court of Appeal twenty-one pages to explain why that's entirely proper.  Because the party on the short end of the correction files an appeal and says you can't do that.  Which, of course, is what you'd fully expect 'em to do if the math error was in her favor.

Regardless, in the end, the Court of Appeal affirms, and (belatedly) publishes the opinion to boot.  Making my Monday slightly more pleasant.  'Cause that seems exactly the right result.

P.S. - You'd think the parties here might have bigger fish to fry than this.  The case involves the marriage of Mr. and Mrs. Spector.  As in, Phil Spector and his ex-wife Rochelle.  The couple got married when Rochelle was 26, Phil was 67, and the latter was under indictment (and ultimately convicted) of killing Lana Clarkson.  Puts a strain on a marriage -- or any relationship -- for sure.  (Though there were apparently happier times.)




In Re Fagerdala USA - Lopoc (9th Cir. - June 4, 2018)

Who says that bankruptcy cases are boring?!  Look at all the tactical and procedural manipulation that goes on here.  Fancy stuff!  A product of sophisticated planning by the underlying legal team.

It's not just litigators who get to muck around with the rules to their advantage.  Bankruptcy lawyers get in the act as well.

Friday, June 01, 2018

In Re R.W. (Cal. Ct. App. - June 1, 2018)

The glorious month of June (in San Diego, anyway) begins by affirmatively confounding me.

I legitimately don't understand where today's opinion by the Court of Appeal is coming from.

Check that.  I totally understand why it reaches the result the way it does.  I too don't want 16 year old kids who are waiting for their parents to come pick 'em up from the police station to go barging out onto the streets for no reason.

I just don't understand how the Court of Appeal gets there.

The 16-year old minor here was picked up by the police as part of an investigation into a stolen vehicle.  The police arrested the driver of the vehicle, and decided to release the minor female to her parents.  The relevant deputy had other things to do, so he handed her over to another deputy doing some paperwork while the mom drove from her nearby home to pick up her daughter.

Eventually, after a little waiting, the daughter "became frustrated and increasingly impatient."  After some additional words with the "babysitting" deputy, the minor "got upset, grabbed her bags, and walked out of the room . . . headed towards the door" to the street.  But the deputy didn't want her to go, so grabbed her arm; the minor resisted, another deputy got involved, they handcuffed the kid, and then charged her with resisting a police officer.

To which the minor's defense is:  I had a right to leave the police station.  You unlawfully stopped me, and it's okay to resist someone who's doing something unlawful.

Which tees up the case for the Court of Appeal.

Now, if the minor had been arrested, she's obviously not free to leave, so she's not entitled to resist.  Easy peasy.

But here's the critical fact:  The minor hadn't done anything wrong.

The Court of Appeal is crystal clear on this point:  "At the time she was turned over to Deputy Slawson’s custody [the babysitting deputy], minor was no longer under investigation and no charges were being filed against her."  Lest there be any doubt, when the minor started talking to that deputy to try to get her friend (the driver) off the hook, the deputy even expressly told the minor to cut it out:  "When it became clear from minor’s responses that she had no involvement in the car theft, Deputy Slawson told minor that she did not need to lie to make herself a suspect in that case."

In other words, while the minor might have initially been a potential suspect in the stolen vehicle case, at the point she was in the station and waiting for her mother to pick her up, the police had eliminated her as a suspect.  Or, as the Court of Appeal put it, she was "no longer under investigation and no charges were being filed against her."

We have a standard term for that.  It's called "being free to leave."  As in:  "You're not under arrest.  You're free to leave."  Because you're an ordinary citizen who hasn't committed a crime.

Now, admittedly, she's a minor.  You don't have infinite rights as a kid.  We don't generally let two year olds, for example, walk around unattended.  That'd be dangerous.

(The Court of Appeal makes this same point, albeit a little more harshly and universally than I think is warranted, saying that "juveniles, unlike adults, are always in some form of custody" since they are under some degree of control by their parents.)

But here's the rub:  While we don't let kids to whatever they want, and don't let toddlers run around in the streets unsupervised, that doesn't answer the question of whether the police are allowed to detain an innocent citizen who hasn't done anything wrong.  The kid's parents may have certain rights.  But can the police force a 16-year old to stay in a police station when she hasn't done anything wrong and feels like leaving?  Or is she really not "free to go" merely because she's 16?

The Court of Appeal basically says, yeah, since she's a minor, she's not free to leave.

Now, you could maybe see why that might be a good policy call.  Reasonable people might well think that the police should be allowed to detain minors whenever the police feel like it.  (Though I could definitely understand the contrary view as well.)

Regardless of whether that's a good rule or not, what I sincerely don't get about the opinion is how the Court of Appeal legally gets there from the laws we actually have now.

Justice Ramirez quotes the relevant statutes in this regard.  Section 625 of California's Welfare and Institutions Code provides (and I'll highlight the relevant part):

"A peace officer may, without a warrant, take into temporary custody a minor: (a) Who is under the age of 18 years when such officer has reasonable cause for believing that such minor is a person described in Section 601 or 602.”'

Section 602 in turn provides (and I'll again highlight the relevant provision):

"Except as provided in subdivision (b), any person who is under the age of 18 years when he or she violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court."

Put those together, and you pretty clearly have -- at least in my view -- what existing law says about when the police can seize a minor.  The police can only detain a kid when they have "reasonable cause for believing that such a minor" has "violate[d] a[] law."  Makes sense, right?

Maybe that meant they could grab the kid (just like any non-kid) initially, when the police were investigating whether she had committed a crime.  But then they cleared her.  They decided that she hadn't committed a crime and weren't going to charge her.

Which, in my view, pretty clearly means that under Section 625 and 602, they had to let her go.  Just like anyone else who was initially detained and then, after investigation, cleared.  Because, under the words of the statute, since the police had now decided that the kid didn't steal the car (and instead had arrested the driver of the thing for doing so), the kid had not "violate[d] any law" and hence was free to leave the police station.  (Whether she got in trouble with her parents is, of course, an entirely separate matter; thankfully, no similar standards of proof apply to parental discipline.)

But the Court of Appeal never seems to engage at all on this substantive point. Justice Ramirez's opinion instead focuses almost exclusively on Section 626, which says that "minors detained under section 625 may be (a) released, (b) delivered to an agency for shelter, (c) released after issuing a notice to appear before a probation officer, or (d) delivered to a probation officer," and that includes (under precedent) "being taken to a curfew center or other facility to await pickup by their parents."

But Section 626 only applies if you're properly being detained under Section 625.  And Section 625 says the kid can't be detained if she's not suspected of committing a crime.

So I truly don't understand how Section 626's allegedly implicit permission for police to keep a kid in the station awaiting their parents (by analogy to taking 'em to an agency for shelter) matters.  Since it seems to me that the kid's basic argument is that you can't do any of the things listed in Section 626 since it wasn't permissible to continue detaining her under Section 625 since she hadn't done anything illegal.  I honestly don't see how or where the Court of Appeal responds to this basic statutory point.

Imagine that Section 625 says (as it does) that you can only detain a kid when you reasonably suspect them of a crime, and then Section 626 said that if a kid is detained under Section 625, she can either be "released, insulted, or spanked by the officer" (different options than the existing Section 626, but the same basic statutory structure).  Imagine further than a kid -- like this one -- is initially detained, cleared by the officers of any crime, but then the officers spank the kid anyway.

There's no doubt whatsoever that we'd all say:  "Whoa, Nelly.  You can't do that.  The statute doesn't allow it."  But it's the exact same thing here.  The reason you can't spank the kid, even though Section 626 says you can, is because you can only spank someone (under Section 625) who you think actually committed a crime.  Once you've decided they didn't commit the crime, you can't spank 'em.  That's what the statute says.

Ditto for holding them in the police station to await their parents.  Section 626 may perhaps list that as an (implicit) option.  But only when the kid can permissibly be detained under Section 625, which she can't, since no one thinks she actually committed a crime.

Maybe there's a policy justification for having a different type of law.  Maybe there's a "community caretaking" or some other constitutional exception to the Fourth Amendment legality of the seizure.  Maybe we should want police to keep kids in their custody awaiting their parents even if they haven't done anything wrong.

That's all well and good.  But at least the way I read Section 625 -- which sets forth our actual rules on when kids can be detained -- that's not the law as it currently reads.

Which is the thing we're supposed to enforce.

So I totally understand the legitimate desires of the Court of Appeal in reaching the result it does.  But I legitimately don't understand how it somehow reads the relevant statutes in a way to ostensibly permit such a result.

Thursday, May 31, 2018

Abbott Laboratories v. Superior Court (Cal. Ct. App. - May 31, 2018)

Plenty of big California appellate hitters participate in this case.  Which holds, in a split opinion, that even though the Unfair Competition Law permits a district attorney to bring a lawsuit in the name of the People of the State of California (and obtain relief on behalf of everyone injured), the law doesn't actually do that, and a local DA is instead limited to civil UCL claims in its own jurisdiction.

There's something to be said for the majority view.  But there's also a lot to be said for Justice Dato's dissent.  Both opinions are well-written and make sense on their own terms (though, in terms of style, Justice Dato's is more concise and punchy).  Reasonable minds could indeed differ on the merits.

It's a super important issue.  Definitely worth review by the California Supreme Court.  For what it's worth, Justice Dato's position is more along the lines of my initial sense of these provisions when I first learned of them some two decades ago.  Even though I totally get Justice O'Rourke's competing considerations.

I'll be interested to hear what the California Supreme Court says about this.  And, to be honest, I suspect that any resolution of the merits in that tribunal would not be unanimous.

Wednesday, May 30, 2018

People v. Brunton (Cal. Ct. App. - May 30, 2018)

It's never all that fun to be booked into jail.  Maybe you've been driving while impaired.  Maybe you've shoplifted.  Maybe you're innocent.  Regardless, before you have a hearing and make bail, you're going to spend a cozy evening in a local jail cell.

Or maybe not so cozy.

Here's Christopher G.'s experience.  He was booked into the local jail here in San Diego.  They give him a random cellmate, a guy named Richard Brunton.  Just another guy spending the evening in jail.

But things go downhill quickly.  Immediately, even.  The victim, Christopher, could be just about any of us.  A guy who's had a bad day and yet it's about to get much, much worse:

"When Christopher entered the cell, Brunton "star[ed] [him] down." Seeing that Brunton already had the top bunk, Christopher placed his bedding on the bottom bunk and his toiletries on an adjacent desk. [Seems reasonable to me.]

Brunton said, "Don't put your fuckin' stuff there. I stand there to get up on the bed." [Not exactly the way you want to begin your interactions with your new cellie.  And pretty unreasonable; exactly where does Brunton want Christopher to sleep?!] Christopher apologized, adding, "You don't have to be so rude about it." Brunton replied, "You calling me rude?" Christopher responded, "No, I'm not calling you rude. I said you don't have to be so rude about it, though." Christopher got into his bunk and pulled his blanket over his head. [Yeah, the blanket over the head is definitely going to solve the problem.]

Brunton then punched Christopher hard twice in the back of his head and asked, "You calling me rude?" Christopher responded, "No, man. I want to get the fuck out of here. What are you doing?" He got out of bed and started pushing a button by the cell door to summon a guard. Christopher added, "All I want to do is eat breakfast." Brunton responded, "It's going to be hard to eat without no teeth. . . . I'm going to kill you today. I'm going to murder you. . . . You're going to meet Jesus today." Christopher kept pressing the call button, but no one responded—the communication device in this cell apparently was inoperative. [Seriously?! The urgent call button in the cell is just for show?!]

Brunton kicked and kneed Christopher in the ribs. Christopher screamed for the guards to help him. Brunton grabbed a bath towel, twisted it tightly like a rope, and wrapped it around Christopher's neck. Brunton kneed Christopher in the ribs, dropping him to his knees. Brunton kneed him again and cinched the towel tight. Christopher could not breathe and was "on the cusp of going unconscious." He thought he was going to die.

A guard heard Christopher's "desperate, . . . urgent" yelling, and investigated. The guard observed Brunton standing over and forcefully choking Christopher with a towel. Christopher was "completely limp" and appeared to be unconscious. The guard banged on the cell door with his flashlight and ordered Brunton to let go of Christopher and back away. Brunton did not comply. The guard opened the food port on the cell door and repeated his commands. Again, Brunton did not comply.

The guard radioed to the guard tower to have the cell door opened. With the door open, the guard pointed his Taser at Brunton and ordered him to let go of Christopher. Brunton let go and backed away. The guard ordered Brunton to get on the floor, but Brunton instead stepped on the desk and climbed into his top bunk.

The guard dragged Christopher out of the cell, and another guard handcuffed Brunton and escorted him out of the cell. Christopher was removed from the housing module by gurney and transported to a hospital for medical evaluation."

For all this, Brunton gets a total of six years in prison.  (Which may even go down a year after today's opinion.)  Whereas Christopher gets a terrifying story about his night in the local jail.

Tuesday, May 29, 2018

Airs Aromatics v. CBL Data Recovery Technologies (Cal. Ct. App. - May 29, 2018)

You'd think it'd be an easy rule to remember (and apply).  There's certainly lots of precedent that spells out the rule.

But today's opinion nonetheless demonstrates the need to reaffirm the rule.

It's just fine to say in your state court complaint that you're requesting damages "in excess of $25,000 and in an amount to be proven at trial."  That'll indeed establish jurisdiction and move the case along to trial, without the need for you to worry your little head about whether any specific damages request is too low or too high.

But if the defendant defaults, all you can get is $25,000.  Doesn't matter that the defendant knew that the actual amount at stake was much more than that, that you said "in excess" of $25,000, that you can prove actual damages of many millions of dollars, etc.  It's $25,000 tops.  Because that's the only number you put in the complaint.

And any default judgment in excess of this amount is not merely voidable, but void.

So remember that rule when you draft your next complaint.  Default judgments aren't the usual way things end.  But if all you ask for is $25,000, that may well be all you'll get.

Friday, May 25, 2018

People v. Berg (Cal. Ct. App. - May 25, 2018)

Maybe you were drunk when you were arrested.  But it's now two days later, and you've been in jail the entire time.  You might not have immediately known it at first.  But it makes sense that, after two days, your voluntary intoxication doesn't negate the fact that you had a baggie of methamphatmine in your butt the entire time.

Which, last time I checked, was a crime.

I must say, though, that Mr. Berg remained somewhat classy once he was caught.  As the Court of Appeal recites the facts:

"The deputy escorted defendant to the booking area, where inmates change out of their civilian clothes and are given jail clothing after a visual strip search. As defendant changed out of his civilian clothes, he reached toward his “anus” and started “[d]igging, trying to push or pull something.” The deputy noticed plastic wrapping between defendant’s buttocks. Defendant eventually threw the plastic package onto the floor. The deputy recalled that when defendant was asked what was in the plastic, defendant sarcastically answered “to the effect of, ‘Something not readily available at your local 7- Eleven.’”

Nice.  "Something not readily available at your local 7-11."  Gonna have to use that one myself the next time I'm caught with meth near my anus.

Thursday, May 24, 2018

In re Ruedas (Cal. Ct. App. - May 24, 2018)

I haven't read one of these in a while.  But they're always fun to see.  Opinions that, from the very first paragraph, jump out at you and let you know full well who's writing it even before you reach the end where the author of the opinion is listed.

Today's opinion begins:

"The jurisprudence of retroactivity is a labyrinthine edifice of both critical importance and daunting complexity. It is located at one of those intersections of freedom, justice, and pragmatism that are all too common in the criminal law, and make its practice a humbling experience. In this case, we are asked to offer our best judgment about whether the rule announced in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) is prospective or retroactive. We do so with a caution bordering on apprehension, but we arrive at a firm conclusion the rule is prospective only."

Now, to be brutally honest, I found the first line to be slightly more linguistically complex than I typically prefer.  But the rest of the paragraph is a classic.  And made me know from the very outset that I was reading an opinion by this person.

P.S. - Can I just say:  What a day.  Thus far, the Court of Appeal and California Supreme Court have published nearly a dozen different published opinions.  Which collectively total over 400 pages of text.  Slow down!  Spread it out!  Some of us have other work we gotta get done today as well.  (And the day's not even over; maybe the Court of Appeal will crank out some other opinions later today as well.  Ensuring that, yep, I'll do virtually nothing today except pick up my kids from school and read judicial opinions.)

Multani v. Knight (Cal. Ct. App. - May 24, 2018)

I wish I'd have thought of this as a question for a first year law school exam!  It's a great one.

Justice Willhite raises the issue concisely:

"The primary question presented in this case is: Can a landlord be held liable to a commercial tenant for damage to the tenant’s property resulting from an alleged sewer backup when the tenant (who had a month-to-month tenancy in the premises after her lease expired) had stopped paying rent, had been served (but failed to comply) with a three-day notice to pay rent or quit, and had been named in an unlawful detainer action filed before the alleged sewer backup occurred?"

Oooh!  Good one.  I could definitely see law students coming up with good arguments on both sides.  Ditto for actual lawyers.

Here's how the Court of Appeal answers the question:

"We find that the month-to-month tenancy was terminated by the tenant’s failure to pay rent coupled with the landlord’s filing of the wrongful detainer action. Therefore, as of the filing of the wrongful detainer action, the tenant was a tenant at sufferance who had no lawful right to possession of the premises. Accordingly, the landlord is not liable for damage to the tenant’s property left on the premises when that damage was not caused by the landlord’s intentional act or negligence."

Notice the distinction:  It's not the nonpayment of rent that absolves the landlord from liability, but only the filing of the lawsuit (plus nonpayment) that creates the absolution.

You could see a variety of other possible resolutions, from the landlord still being liable (since the tenant was still in possession) to the landlord not being liable at all (because the tenant had breached by nonpayment) to the landlord not being liable only upon the date the unlawful detainer action was adjudicated in the landlord's favor.  But the Court of Appeal draws a different line.

The question would still be a good one on an exam.  But since the Court of Appeal has already given a pretty good answer, we'll now have to find another one.

Maybe:  "Comment upon and critique the line drawn by the Court of Appeal's opinion in Multani v. Knight?"

Wednesday, May 23, 2018

J.N. v. Superior Court (Cal. Ct. App. - May 23, 2018)

You could see why the trial court thought it made sense to charge the defendnat in adult criminal court.  He's twenty years old.  He's charged with murder.  The juvenile court would lose jurisdiction over him entirely in three short years.  And he's got a prior record.  Given those facts, you'd facially think it makes total sense to put him in adult court.

But read Justice O'Leary's opinion.  This is not the usual case with those types of facts.  You can see why the Court of Appeal comes out the other way, holding that the guy should be in juvenile court.  So holding even though the standard of review is "substantial evidence" and abuse of discretion.

A very comprehensive opinion.

Monday, May 21, 2018

Recchia v. L.A. Dep't of Animal Svcs (9th Cir. - May 1, 2018)

What I remember about my first-year property class in law school largely surrounds issues involving wild animals.  Who owns them, blah blah blah.  I distinctly remember thinking that this seemed to be an immensely non-practical way to begin law school.  Who really cares who owns a particular fox?!  Given that there aren't a lot of wild foxes running around San Diego -- or (at the time) Cambridge -- it was difficult for me to perceive any practical value in learning the detailed rules about who can own a wild animal running around.

Clearly, I was wrong.

This Ninth Circuit opinion is about the Fourth Amendment validity of a seizure in which the L.A. Department of Animal Services impounded a dozen or so pigeons that a homeless person kept in cages on the street and then euthanized them because they were in really bad shape.  (For example:  "One pigeon had a baseball-sized tumor protruding from its abdomen and extensive feather loss. Another pigeon had tremors and continually walked in circles. Another pigeon had a shriveled, non-functional right eye. Still another pigeon had contorted legs, feather loss, and could not walk or fly. Some birds had wobbling necks or necks in unusual positions. Several birds were missing toes or toenails, or had very long toenails that were curled in circles.")

The constitutional issues are interesting for sure.  But there's a particular footnote that I thought to be especially fascinating.  And that took me back to those halcyon days of Property.

The text of the opinion says:  "Defendants have agreed for the purposes of this appeal that Recchia had a property interest in his pigeons."  At which point Judge Gould drops the following footnote:

"Specifically, defendants have agreed “[f]or the purposes of this appeal, there is no dispute there can be some property interest in pigeons.” Accordingly, here we treat Recchia as having a property interests in the pigeons. However, in a case where the issue was properly raised for decision, there would be a substantial issue whether a person can have a property interest in wild animals such as pigeons, raccoons, or coyotes, to name a few. See Bilida v. McCleod, 211 F.3d 166, 173 (1st Cir. 2000); see also Cal. Fish & Game Code § 2000 (prohibiting the taking of a wild bird except as provided for in the California Fish and Game Code)."

Dude!  It's like it's 1989 and I'm back in Mary Ann Glendon's Property class.

Good times.

Friday, May 18, 2018

Easley v. City of Riverside (9th Cir. - May 18, 2018)

I agree with the Ninth Circuit that it's not improper for a district court to demand that the parties brief qualified immunity even though the defendant hasn't elected to file a motion on the issue.  Though it's certainly unusual.  Typically, we let the parties take the lead on what motions and defenses they elect to advance.

But I do wonder about the substantive content of the majority opinion, to which Judge Pratt (sitting by designation from Iowa) dissents.  Yes, the person who was shot was fleeing police officers, but he wasn't even suspected of a serious crime.  Yes, the person who was shot also had a gun on him, and that's incredibly serious.  When a police officer's chasing a person and that person has a gun, you can see why the police might potentially shoot him, in (at least perceived) self-defense.

But here's the thing.  As the victim was running, he grabbed at his waistband, pulled the gun from his pants pocket, and threw the gun away.  Two to four seconds later, the police officer shot the victim in the back and in his right arm.

The majority says that even "taking th[ose] facts and allegations in the light most favorable to [the victim], [the police officer's] use of deadly force was objectively reasonable."  The dissent disagrees.

If the police officer shot the guy the instant he was throwing the gun, I could see how one might find that reasonable (if mistaken).  Maybe the officer misperceived the guy starting to throw the gun as an attempt to turn and shoot.

But when a guy on the run throws something away, and then four seconds later the officer shoots him, that seems significant to me.  Four seconds is a long time.  One.  Two.  Three.  Four.  It seems strange to say that after a guy throws a gun away, after it's crystal clear there are no shots fired, and after the guy simply keeps running after throwing a gun away, an officer can wait four seconds and then shoot the guy, no reasonable person in the universe could say anything other than "Yeah, that seems right to me.  Reasonable."

Admittedly, it's the heat of the moment.  Hindsight's 20/20.

But shooting a guy 50 seconds after he throws a gun away seems totally wrong.  Ditto for 20 seconds.  Four seconds?  What's the right line?  I'm not exactly sure.

But I wonder if a reasonable person couldn't conclude that the line is more like 1 or 2 seconds.  One one thousand, two one thousand.  Enough time to perceive that, yeah, the guy's not actually shooting at you, so don't gun him down.  And that four full seconds is too long.

So I'd definitely get granting summary judgment if the guy was shot a second or two later.  But four seconds, to me, is in a much less clear gray area.  Perhaps sufficiently gray that reasonable minds may in fact disagree, and in which I'm not completely certain that my own belief on the subject was conclusively the correct one.

Thursday, May 17, 2018

Benaroya v. Willis (Cal. Ct. App. - May 17, 2018)

The holding of today's opinion both is important and can be concisely summarized.  Whether a party who didn't sign an arbitration agreement can nonetheless be compelled to arbitrate (e.g., as an alter ego, as estoppel, etc.) is an issue for the court, not the arbitrator.  And it doesn't matter that JAMS rules say the contrary.  The court decides.

Plus, it's a California case, which means there's always the possibility of celebrity involvement.  As the caption here reflects.  The "Willis" is Bruce Willis.  And he gets a $5 million-plus arbitration award against a producer, but it only survives against the company.  Good luck collecting on that.  Although the arbitrator held that the wealthy individual behind the company was also liable, we'll need a court to decide that issue.

So no immediately forthcoming check for Mr. Willis.  The exact opposite of Yippie ki-yay for him.

Wednesday, May 16, 2018

U.S. v. Briones (9th Cir. - May 16, 2018)

You gotta be thinking this one may go en banc, no?

Not because there's a circuit split, or it's a death penalty case, or anything like that.  It's not.  It's just a fact-intensive case about a single defendant.  It doesn't even really raise any substantial issues of law either.  It's instead merely about whether the facts and transcript below demonstrate sufficient support for the life sentence imposed by the district court below.  Period.

That's not something that one would normally think has even a shot at en banc review.  It affects only one person, and one person only.

And yet I think the thing may perhaps go up.

In part because it's a life sentence for someone who was a minor (seventeen) at the time he committed the (admittedly terrible) crimes at issue here.  Which means, in the federal system, that he's going to almost certainly spend the actual rest of his life in prison for something he did as a kid.  ("Because the federal system does not permit parole or early release from life sentences, see 18 U.S.C. § 3624, Briones’s sentence is effectively for life without the possibility of parole.")

Normally, that wouldn't matter.  We lock up kids forever plenty of times.  But pretty much everyone seems to agree that this case involves someone who'd far from the hardened, unreformable criminal that's the stereotype of someone we put in prison forever.  He's now been in prison for 20-plus years, and his conduct for the past two decades has been completely unblemished by any misconduct.  As the majority opinion notes, the evidence below demonstrated that "in all his time in prison he had not been written up once for a disciplinary infraction, that he had no gang involvement, that he had been working continuously, and that he married his girlfriend with whom he has a now-adult child, and that he sees his wife regularly."  And even the government recognized that "Briones was 'really doing well in prison,'” as opposed to what you might well initially think of someone with his history.

I hear you.  "So what?  He committed serious crimes (albeit as a juvenile), and the district court looked at the evidence and sent the guy to prison forever.  That's life.  At least in our justice system.  Maybe right, maybe wrong.  But hardly subject to en banc review.  He'd never get the votes."

My thought too.  At least initially.

But the lineup of the panel may end up persuading me the other way.  The majority opinion is written by Judge Rawlinson.  That may suggest that there are a ton of judges on the Ninth Circuit who might well see the case the same way.  Though the judge that joins her is Judge Ezra, sitting by designation from Hawaii, so you don't know for sure.

But dissenting is Judge O'Scannlain.  Hardly some shrinking violet let-em-all-out leftie.  Exactly the opposite, even.  If even he thinks that the right result is to remand for resentencing, that might well suggest that one might potentially persuade other folks that the right result here is not to lock this person up for the entire remainder of his life.

Now, look.  This is not the "old days" of the Ninth Circuit.  Many of your heartfelt lefties in criminal cases are now gone.  Some of the strongest voices for correcting serious individual injustice through the en banc process are now silent.

But not all of them.

The prospect of compelling someone to die in prison when they might well be a "different person" from the one who committed the heinous crimes of a teenager might perhaps prompt a serious look at this case.  If only knowing that even some ordinarily hard-core people (like Judge O'Scannlain) may be perhaps sympathetic to the cause -- not in general, but in this particular case.

We'll see.  It'll be a good test case about the contemporary composition of the court, and it's desire (or willingness) to do justice in a given case.

Yeager v. Holt (Cal. Ct. App. - May 16, 2018)

How the mighty have fallen.

He ultimately wins today's appeal, which concerns an anti-SLAPP motion filed against him that should never have been attempted.  He even gets awarded his costs on appeal.

But General Charles E. "Chuck" Yeager nonetheless doesn't enhance his reputation with the present lawsuit.  Here's in part what the Court of Appeal says in footnote 3:

"It may be, as Holt claims, that the Yeagers have filed baseless litigation, but an anti-SLAPP motion is not the right vehicle to litigate this case. The trial court pointed out at the hearing that claim or issue preclusion might bar this suit or Holt might have a claim for malicious prosecution. We express no view on these points, but note with disapproval the ad hominem attacks against Yeager made by Holt in the trial court and on appeal. “Trying to win an argument by calling your opponent names . . . only shows the paucity of your own reasoning.” (Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417, 1430.) We deny Holt’s requests for judicial notice of other cases declaring one or both of the Yeagers to be vexatious litigants, as that material was not before the trial court when it made the order under review."

You'd hope that General Yeager would get the message on remand and drop the suit, notwithstanding winning the appeal.

Though I fear that won't be the case.

(And who knows.  Maybe it's not even his fault.  He's 95 years old.  He was married to his wife Glennis for 45 years, until she died of ovarian cancer in 1990.  He then married Victoria D'Angelo, who's 41 years younger than him, and vociferous litigation between the couple and Chuck's family promptly commenced.  His wife Victoria is also a party to the present action.  Victoria and Chuck are both now on the vexatious litigant list.  Maybe it's all the fault of the 95-year old.  Maybe not.)