Monday, June 07, 2021

People v. Brewer (Cal. Ct. App. - June 7, 2021)

This is a case about a 28-year old defendant who was sentenced to 63 years in prison for a string of robberies.  Defendant argues this is a "functional life sentence" and unconstitutional in light of his mental disabilities, asserting that he has the functioning intellect of a 10-year old.  The Court of Appeal disagrees.

It's a bad case for the arguments defendant makes.  He was personally armed.  There were a plethora of robberies.  He had a prior criminal record.  You're going to be hard pressed to persuade someone that, at this point, taking a 28-year old off the street until he's 60 or so (assuming time off for good behavior) is unconstitutionally excessive.

On an only tangentially related note, I had to reflect on my own mental competence when I stumbled over a portion of Justice Murray's opinion.  On page four, the opinion reads:

"On November 24 at approximately 6:15 p.m., J.K., the store manager at the ampm on Marconi Avenue, saw two men enter the store."

When I read this, I asked myself:  "Wait.  What's an ampm?  Is that a typo?  An abbreviation for amphitheater?  What?!"

It took me a couple of seconds before I finally figured out what an ampm was.

Too much good stuff.

POSTSCRIPT - An informer reader reminds me that as a "striker" the defendant here actually has to serve a minimum 80 percent of his sentence, rather than half, so the earliest he can get out is age 78, rather than in his 60s). I doubt that fact would sway most readers to a different conclusion, but agree that 78 is super old -- as well as likely exceeds the probable (but by no means certain) life expectancy for a male who's spending 50 years in prison. 

Perry v. City of San Diego (Cal. Ct. App. - June 7, 2021)

One of the great things about living in San Diego is that the City picks up your trash for free.  Well, not  totally "free" -- taxes pay for it, of course.  But it's part of the goods and services that the City provides.

But like most municipal services, this inevitably creates fights about who's entitled to these services and who's not.  So in today's opinion, you've got owners in a condominium complex in Hillcrest -- a hip part of the City -- arguing that the City should have to pick up their trash rather than the condo owners paying someone to do it.

Which in turn means that the condo owners are represented by a lawyer.  I'll call his specialty:  Trash Law.

Unfortunately for them, the condo owners and their lawyers lose, both on summary judgment and in the Court of Appeal.  Here in San Diego, we don't pick up trash (for free) from gated communities like this one.  Only from regular old residences that directly abut public streets.

So the condo owners lose.  You need not feel massively bad for them, however.  It looks like the average condo in this complex is worth around a cool million.  So it's not like the owners don't have the scratch to pay for private trash service.

Wednesday, June 02, 2021

People v. Lund (Cal. Ct. App. - June 1, 2021)

It's another child pornography case; there are a lot of these.  That whole "looking for kiddie porn" thing is -- to put it mildly -- super fraught with danger, wholly apart from its many other unsavory aspects.

Lest anyone believe that these things aren't super easy to discover, Justice Brown's opinion goes into detail about the automated system that apparently thousands of police officers are using every single day to find people sharing kiddie porn:

"In August 2014, Vacaville police detective Jeffrey Datzman was investigating child pornography cases over peer-to-peer networks. One of the tools Datzman used was privately developed software called the Child Protection System (CPS). CPS is the web interface for viewing results from a suite of several software tools that each search for child pornography on a specific peer-to-peer network. It is used around the world in 84 countries by over 10,000 users, all of whom are law enforcement personnel.

The CPS software suite automates the process of searching peer to peer networks. Previously, law enforcement officers would have to manually input keyword search terms to discover computers that were hosting suspected child pornography and then further investigate those GUIDs. By contrast, CPS sends out search terms continuously. CPS also compares the files listed in response to the keyword searches against CPS’s database of hash values, which contains the hash values of files that law enforcement officers somewhere in the world have previously tagged as being child pornography. If there is a match between the hash values for the files listed in response to the search and the hash values in the CPS database, CPS logs the details of the event in a CPS database for police officers to follow up on later. CPS logs the filenames and hash numbers of the suspected child pornography files being offered; the GUIDs, IP addresses, port number, and, in most cases, software used to offer the files; and the dates and times CPS detected the GUID with the files. Police officers obtain records from internet service providers to determine the physical location of the computer associated with the GUIDs, IP addresses, and port numbers logged by CPS."

So unless you're sharing child pornography (or have it on your computer) that's totally unique and not seen by any officers before, it looks like it's probably going to have a "hash value" and be discovered.

Not a risk I'd take -- at all -- even for things that aren't immoral, harmful and incredibly sleazy.

The other fascinating thing about this opinion is how it begins.  I'm very familiar with the kinds of sentences that are routinely handed out in these types of cases.  The opinion begins by describing the offense:  "A jury convicted Eric Lund of one count of possession of more than 600 images of child pornography, at least 10 of which involved a prepubescent minor or a minor under 12 years old, in violation of Penal Code section 311.11, subdivision (c)(1)."  I totally expected the next sentence to read something like:  "The trial court sentenced Lund to 60 years to life in prison."  But, in reality, the next sentence read:

"The trial court sentenced Lund to five years in prison."

Dude!  Mr. Lund should thank his lucky stars that he only got five years.  Plus it's in state court, which means he likely gets out in two and a half.  In federal court, dollars to doughnuts says he's in prison for more like 15 to 20, minimum.

Why only 5 years, I thought?  Maybe because he's otherwise a "good guy"?  (Apart from the interest in viewing the sexual exploitation of children, I guess.)

Perhaps.  Though once one reads further in the actual opinion, one discovers yet another interesting fact about Mr. Lund.

He's a cop.  Who was viewing the kiddie porn for the most part while on duty.

The guy's not a total idiot.  He'd go to publicly available wifi addresses -- e.g., the Yogurt Beach Shack -- and download the stuff there.  That way it's not linked to his home address.

But you can still totally get caught.  For example, with Mr. Lund, here's how they first caught onto him:

"During the surveillance, Datzman connected to the Yogurt Beach Shack’s router so that he could observe whether any devices connected to the router and see such devices’ “mac ID,” which is a unique specific identifier for a device. On one night, at around 1:00 a.m., Datzman saw a device connect to the router, and he recorded the mac ID. Datzman then drove around the outside of the building to see who was nearby that could be using the device. Datzman noticed a California Highway Patrol (CHP) vehicle parked near the business. Lund was the sole occupant of the vehicle, seated in the driver’s seat and looking down and to his right at a lighted object. Datzman then contacted Sergeant Jason Johnson in the Vacaville Police Department. Johnson agreed to contact Lund using a ruse to determine his name. The ruse succeeded and Lund told Johnson his name. After Johnson spoke to Lund, Lund drove away, and Datzman noticed that the mac ID of the device that was using the Yogurt Beach Shack router dropped off at the same time. No other devices connected to the router that night."

So they get warrants, find flash drives and the like, find more kiddie porn, etc.  For example:  "The external hard drives together contained over 10,000 files that Datzman suspected to be child pornography, based on their hash values’ matches to the CPS database. Datzman reviewed a sample of 73 videos from the hard drives and confirmed that they were child pornography, with almost all of them containing at least one prepubescent minor."

But, still, despite all this evidence, Mr. Lund's first trial ends up in a mistrial, and even after he's convicted at the second trial, he still gets only 5 years.

Not the way these cases usually come out.  At all.

In any event, you wouldn't expect most police officers to be into kiddie porn, right?  Much less to take the risk.

But there you have it.  At least here.

Thursday, May 27, 2021

U.S. v. Holiday (9th Cir. - May 27, 2021)

Judge Smith makes a variety of unremarkable -- indeed, correct -- legal and factual assertions in this morning's Ninth Circuit opinion.  But there's one claim in particular that struck me as fairly surprising.

Rather than prejudice you with my own sense (or Judge Smith's), I'll set up the issue just by asking a basic question and getting your answer at the outset.

Here's the question:  In your run-of-the-mill police car chase, which of the following attributes normally exist?  (Warning:  I'm definitely making up some of them.  I just want you to pick out which attributes are the ordinary markers of a police chase, as opposed to those that aren't.)

(A) Sirens.

(B) Air surveillance.

(C) Shots fired by the police.

(D) Dogs.

(E) SWAT officers in full gear.

(F) Tactical nuclear weapons.

To assist you:  Clearly, (A)'s an ordinary marker of police chase, whereas (F) is most definitely not.  Pretty much every police chase -- not all of them, to be sure, but most of them -- involve officers with sirens blaring.  Whereas, to my knowledge, very few police chases involve either the possession or use of nukes.

What about (B) through (E)?  Which ones would you say are ordinary markers of a police chase?  Choose.

Different people might say different things, but personally, I'd think that maybe (B) qualifies, but not any of the others.  Maybe most -- or at least a ton -- of police chases involve supporting helicopters or aircraft.  So I'll go ahead and say that "air surveillance" is an ordinary marker.

But (C) (shots fired by police)?  Nope.  The vast majority of police chases don't involve shots fired, IMHO.  Dogs?  Nah.  Not really.  I'm sure that some of them involve K-9 units (just like some of them involve shots fired).  But that's not an ordinary attribute.  SWAT officers?  Nah.  Again, some chases surely call out the SWAT team.  But not most -- or even, I suspect, many -- of them.  That's not an ordinary marker of a police chase.

So, in the end, I say (A) and (B).  You?

Whereas Judge Smith says:  (A), (B), (D) and (E).  Which seems a fair piece aggressive -- and factually inaccurate -- to me.

What follows is the actual line from Judge Smith's opinion. Context: The government showed the jury a videotape from a police chase, ostensibly not to prove that the defendant was a bad guy, but principally to show that he possessed a particular sweatshirt -- a sweatshirt that the video showed he indeed wore during the police case, and that indeed looked awfully similar to one one worn by the robber during the robbery. (Put to one side the fact that the videotape was wholly unnecessary to prove the possession, since the defendant was surely willing to stipulate to that fact, the police officers could surely testify to it anyway, and the government in any event undoubtedly had the sweatshirt itself in its possession to actually show to the jury what defendant was wearing on the day of the chase.) Was showing the jury a video of the police chase unduly prejudicial?  Judge Smith says no, claiming . . . .

"Although the video showed 'a vehicle police chase, SWAT officers in full gear, dogs, air surveillance[,] and sirens,' none of these features is particularly prejudicial, as all are ordinary markers of a police chase."

You already know my take on that front.  Sirens, yes.  But showing the jury that this particular chase involved SWAT officers in full gear and dogs; well, those aren't "ordinary markers of a police chase" under at least my understanding of what police chases usually entail.  And I bet that's even more so for the lay jurors at issue.

Maybe it's not an abuse of discretion or the like to admit the evidence; on that, I can see why someone might come out the way Judge Smith does.  But SWAT officers (in particular) and K-9 dogs as 'ordinary markers of a police chase?" I think not.

Tuesday, May 25, 2021

White v. Molfetta (Cal. Ct. App. - May 24, 2021)

As one gets older, there's generally an increasing tendency to want to impart wisdom to others.  Maybe it's in part a slight recognition of mortality.  Maybe it's an understanding that age and experience often bring knowledge to the table that's easily overlooked in one's younger days.  Or maybe that's just the nature of being an elder statesperson.

Whatever the cause, it happens.  You want to leave something behind.  You want to share your insights with others.

Of course, this isn't necessarily limited to those with experience.  Plenty of excited youth are more than interested in spreading their wisdom as well.

I say all this after reading this opinion by Justice Bedsworth.  It's doctrinally a case about damages, and affirms the trial court's dismissal of a lawsuit because plaintiff can't prove that he was harmed in a way in which the law allows compensation.  But more generally, Justice Bedsworth wants to use the opinion to remind lawyers to do a good job.  That it matters.  A lot.

You get a sense of the tenor of the piece from its first two paragraphs:

"The practice of law has become complex and difficult. If practiced as it should be – as a profession – it has never been easy. But the demands on counsel’s time and talent have multiplied exponentially of late, and the 21st Century practitioner’s responsibilities far outstrip those we bore 25 years ago.

But recognition of this fact should be an inspiration to excellence rather than an explanation for failure. No matter how stressed and challenged they may be, lawyers must treat clients – all clients – with basic professional courtesy. That seems rudimentary, but it’s often overlooked or neglected. It shouldn’t be."

The client here gets treated relatively poorly, with his criminal defense lawyer not responding at all to several letters.  The Court of Appeal holds that this isn't actionable, but nonetheless, wants to remind everyone to do better next time.  To try their best.

Seems like a reasonable message to me.

On another note, at the end of the opinion, after explaining why the plaintiff can't recover compensation notwithstanding the bad things that happened to him, Justice Bedsworth says:  "So we are left with the proverbial wrong for which there is no remedy."  Which struck me as particularly funny; not ha-ha funny or anything, but ironic.  Since there's an express maxim of statutory jurisprudence -- enacted by the Legislature, no less -- that says the exact opposite.  Civil Code 3523:  "For every wrong there is a remedy."

I get what the Court of Appeal is saying.  "More precisely, we are left with a wrong from which there were no damages – at least no legally cognizable damages."  It's just funny to use words that are the precise antithesis of something written down in the law books.

Friday, May 21, 2021

U.S. v. Lopez (9th Cir. - May 21, 2021)

Add today's opinion to the legion of statutory interpretation cases about whether "and" means "and" or "or".

For the record:  For this statute, the panel says it means "and".  Which, in truth, is usually the right call.

It's an exciting opinion for statutory interpretation fans.  It discusses a ton of the relevant canons -- plain meaning, legislative intent, surplusage, absurdity, rule of lenity, etc. -- and discusses them well.  Indeed, the principal conflict between Judge Murguia's opinion and Judge Smith's concurrence is whether the "and" interpretation makes another statutory provision surplusage; Judge Murguia says it doesn't, whereas Judge Smith says it does, but that it doesn't really matter.  Neat take.

I'll add parenthetically that the conflicting expressions of legislative intent cited in the opinion are a good example of legislative history that pretty much matter zero.  On both sides, the legislators aren't focusing on or even talking about the statutory text at issue.  They're just talking about the "purposes" of the bill in general.  Vague expressions like that don't really help much.  On either side.  (By contrast, when there's specific evidence relevant to the meaning of the actual words at issue, then I personally think that's entitled to some weight -- Scalia etc. be damned.)  (*Not literally.)

Wednesday, May 19, 2021

San Diegans For Open Government v. Fonseca (Cal. Ct. App. - May 19, 2021)

It's a fact of life that, sometimes, particular trial court judges simply don't personally like particular high-profile attorneys who appear before them.  The flip side is also true, of course; sometimes, judges really respect and enjoy having particular attorneys before them.  Usually, you hope those sorts of things don't affect the results achieved in the litigation -- with some notable exceptions, of course.  But, on the whole, at the trial court level, there are some repeat players, and sometimes, the fact that a particular judge doesn't feel much fondness for the particular attorney at issue might potentially affect, at least slightly, the way the case resolves.

By contrast, you don't see that as much on the appellate side.  There are good and bad lawyers in the Court of Appeal, of course.  As well as particular judges who like or dislike particular practitioners.  But I don't get the sense that the level of interaction -- or strength of feeling -- is particularly high in the Court of Appeal, or at least is less than what you often see in trial courts.  If only because justices on the Court of Appeal simply don't spend as much time with even repeat player advocates as trial court judges do with lawyers at lower levels; e.g., during the course of even a single trial.

I say all this as backdrop to this opinion, in which -- reading between the lines -- I sense a nontrivial amount of hostility.  From the trial judge against the plaintiff's lawyer, who's a definite repeat player down here in San Diego.  And, similarly, from the judges on the Court of Appeal against that same lawyer and the public interest organization with which he's closely involved and represents on appeal.

I'm not expressing any judgment as to who's right or wrong in the case.  It's about whether a particular organization has standing to file a citizen suit -- an organization that files a fairly substantial number of public interest lawsuits.  The Court of Appeal describes the testimony of the organization's Board member and PMK deponent in fairly stark and negative terms (though accurately).  The panel also employs relatively harsh terminology that you sometimes -- but don't generally -- see in appellate decisions; for example, saying not only once, but twice, that certain evidence was "woefully insufficient" to establish a particular claim.

Read the opinion to see if you agree, but reading between the lines, I just got the keen sense that the justices on the panel thought that the underlying organization and its lawyers were at least a little bit sleazy and were trying to manufacture organizational standing that in reality didn't at all exist.  Hence the language and temperament of the opinion.

Perhaps in an even more deeply felt fashion than even the trial court.

Monday, May 17, 2021

Sansing v. Ryan (9th Cir. - May 17, 2021)

Okay, I get it (I guess):  You love the crack cocaine.  You and your spouse have been on a binge for the past four days.  You're looking to continue the streak.  Maybe -- after four days, anyway -- you're also a little bit hungry.  Or, at a minimum, your four children are (!).

So you call a local church and ask them to deliver a box of free food.  That's a fine decision.

The suboptimal choice, by contrast, is your contemporaneous decision to rob whomever the church sends to deliver the food.  Ditto for your ultimate decisions to rape and kill her in your home, and then to "hide" the body in a shed in your backyard under a piece of old carpeting.

That stuff gets you sentenced to death.  Although Judge Berzon dissents, Judges Watford and Callahan are okay with the conviction and sentence, so that's pretty much it for your federal habeas petition (barring en banc review or the Supreme Court favorably stepping in).

If you were in California, you could probably not worry about actually being executed.  But Arizona's likely to restart executions in a little bit (after a seven-year hiatus).  So there's a real chance that you'll actually get a date with the needle.

Don't do crack cocaine.  Don't kill people.  Two important reminders for those otherwise inclined.

Thursday, May 13, 2021

Cheneau v. Barr (9th Cir. - May 13, 2021)

Without particularized knowledge of the Ninth Circuit, you wouldn't necessarily think that today's en banc opinion would come out the way it did.  Indeed, it some ways, the lineup today is the least likely of all of the various plausible results.

It's an immigration case.  Mr. Cheneau is convicted of various crimes (burglary, car theft, etc.), and the government wants to kick him out of the country as a result.  But, not surprisingly, Mr. Cheneau does not want to leave.  He says he's a "derivative citizen" under a particular statute even though his parents were from outside the United States, he wasn't born in the U.S., and he only came here when he was 13, on a nonimmigrant student visa.

You can figure out the typical sympathies in en banc cases like this.  The left-leaning judges appointed by presidents from the Democratic Party (i.e., Clinton and Obama) are likely to lean towards Mr. Cheaneau, whereas the conservative judges appointed by presidents from the Republican Party (i.e., Bush and Trump) are likely to be predisposed against him.

But there's a bit of a wrinkle here.  Circuit precedent is strongly against Mr. Cheaneau; under that law, he clearly loses.  But there's a decent argument that this precedent misreads the relevant statute.  Hence why the case gets taken en banc.

So it depends on the draw, right?  There are 16 Democratic-appointed active judges and 13 Republican-appointed active judges.  Statistically, the draw's likely to be a mix, and the outcome in large part will depend on who gets chosen.

The draw happens.  Six Trump appointees get selected; four Clinton/Obama appointees round out the panel, plus Chief Judge Thomas (Clinton).

So one way you might draw up this result is to say:  "Okay, it's likely to be a 6-5 against the immigrant, with the conservatives voting to deport the guy and the liberals voting to keep him here."

But that's not the way it works out.

Which is perhaps foreshadowed by the original panel opinion.  A unanimous per curiam opinion in which Judges Bennett and Miller -- both Trump appointees -- are on the panel.  The panel held that they were indeed bound by circuit precedent to hold against the immigrant.  But everyone on the panel also joined a concurrence that said that this circuit rule was wrong as applied to the facts of the present case.

So if you've got even two conservative Trump appointees (joined by a judge sitting by designation) arguing in favor of the immigrant, then another way one might well predict the result of the en banc court is to say:  "Well, apparently, this one's easy, and everyone of all political stripes will agree."  (Or at least most everyone.)  Maybe it'll be an 11-0?

You might even think such a result more likely when the en banc panel decides they don't even need oral argument to decide the case.

But, yet again, as it turns out, such a prediction would also be wrong.

Instead, two unlikely things happen.  First, of the six Trump appointees drawn for the panel, two of the six are Judges . . . Bennett and Miller.  The two judges who were on the original panel.  The odds are very, very strongly against that.  But it happens.  Then, the four remaining Trump appointees who are drawn are . . . the final four Trump appointees to the Ninth Circuit (Judges Bress, Hunsaker, Bumatay, and VanDyke).  Again:  Statistically, not very likely at all.

So, in the end, you get a 7-4 decision in favor of Mr. Cheaneau.  The five Democratic appointees join the two Trump appointees who were on the original panel to form a majority, and the last four Trump appointees dissent.

Pretty neat.  Not the draw (or outcome) one would have necessarily written up at the outset.

One lesson that might potentially be derived from this result in the occasional difference between the early Trump appointees -- Judges Bennett and Miller were two of the first three Trump appointees to the Ninth Circuit -- and the end-stage Trump appointees.  Personally, I don't want to make too much of this, but still, it's worth considering.

The other potentially partially explanatory factor at work here is how relatively little the case matters in the broader statutory immigration scheme.  As the majority opinion explains in its final footnote:

"We recognize that this case involves a statute that has been repealed and will not affect many cases. As the Government observed, “litigation regarding § 1432(a)(5) is not widespread, and will continue to diminish with the passage of time.” We also recognize that, not only is litigation concerning this issue “not widespread,” but that this case involves relatively unique circumstances. It is striking how many events had to align at particular times and in a particular order for Cheneau to qualify as a derivative citizen under § 1432(a)(5): He lawfully entered the United States at age thirteen, intending to remain permanently in the country. His mother naturalized while he was under eighteen. He objectively and officially manifested his intent to reside permanently in the United States by filing an adjustment of status application before he turned eighteen. And all of this occurred before the statute was repealed in 2000. Nonetheless, it is important for resolution of this case, and the relatively few cases involving similar circumstances, for us to apply the proper statutory analysis and to apply a correction to the relevant portion of Romero-Ruiz."

It's perhaps easier for conservative judges to find in favor of particular immigrants in cases involving idiosyncratic and not-often-replicated fact patterns involving repealed statutes than in cases that have broader application to immigrants as a whole.

Regardless:  Neat little lineup, and neat -- and perhaps somewhat unexpected -- result.

Tuesday, May 11, 2021

In re Marriage of Kelpe (Cal. Ct. App. - May 11, 2021)

One of the things about reading marital dissolution cases is that they sometimes provide a glimpse into the personal and/or professional lives of the litigants.  Sometimes that's enlightening.  Sometimes that's a bit depressing.

In today's opinion, it's a little of both.  The spouses here were married in 1997 and separated in 2010.  So they had 13 years together.  Husband was a senior manager with Ernst & Young throughout the marriage.  Not a bad job.

On the upside for Husband, he becomes a partner at E & Y.  As a double-plus upside, he joined the E & Y partnership on January 1, 2012 -- less than two years after getting separated.  Which means that all his partnership money is his separate property.  Including the nearly $1 million lump sum retirement payment that's at issue in this case.

Lesson:  If you're going to get divorced, do it right before you start making the big bucks.

So total good luck for the Husband, right?

Sort of.

He becomes a partner in 2012.  Then look at what happens right after that:  "Respondent suffered a heart attack in 2014. In October 2015, Ernst & Young requested that he withdraw as a partner, and he resigned from the firm effective December 2015."

So, yeah, Husband becomes a partner, and gets all the money, but what it took to eventually get there takes its toll, and he's only a partner for a couple of years before his debilitating heart attack and resulting forced departure.

Sometimes bad comes with the good.

Friday, May 07, 2021

People v. Nunes (Cal. Ct. App. - May 6, 2021)

Doesn't it seem like Justice Grover is clearly and unambiguously right here?

I agree that it was reasonable for the fire department captain to respond to the defendant's residence.  After all, someone had called in a report that there was a "whole structure fire" at the house.  Given that report, I'm glad the fire department showed up.

Now, when he gets there, the fire captain sees no fire and no smoke.  But okay.  It's still worth checking out.  Especially since some neighbors say that they had previously seen a plume of smoke coming from the back yard.

For that reason, it also seems okay to me for the fire captain to go ahead into the backyard.  Yes, there's no visible fire or anything.  But the captain says there's an "odor of smoke" around the "entire backyard" -- albeit not coming from anyplace in particular.  All of the above probably counts as exigent circumstances.  We want to make sure there's not a fire.

The fire captain's decision to open the closed shed is a closer call.  There's no obvious fire or smoke coming from the shed.  No one says the smoke smell seemed like it was coming from the shed.  To the degree there's anything that hints at where the smoke smell is coming from, the shed's not the culprit:  the captain sees some test tubes and chemistry equipment on the ground of the backyard, and a homemade toy rocket that looks burned.  All the in backyard; nothing in the shed.

But okay.  Let's assume, if only for purposes of argument, that it counts as "exigent circumstances" to enter the shed without a warrant.  Just to check it out.

When he enters the shed, the captain again doesn't see any smoke, any fire, or anything else that seems to explain the smoke or fire.  It's just a shed.

There's a metal cabinet in the shed.  Again:  No smoke or fire or anything in the cabinet, or anywhere in the shed.  Was there any reason why the fire captain might suspect anything untoward about the metal cabinet?  Nope.  Nothing.  The captain testifies:  “Q: Was there anything about the shed in particular, the cabinet in particular that made you feel that you needed to check that area? [¶] A: Not in particular.”

Nonetheless, without getting a warrant, the fire captain opens the cabinet, and finds some incriminating chemicals.  This ultimately leads to the defendant getting arrested.

Did exigent circumstances justify opening the cabinet?

Justice Grover says they didn't.  And that seems exactly right to me.

Justice Elia disagrees, and dissents.  But Justice Grover has the much, much better of the argument.  The claim that there might have been something potentially "smoldering" in the cabinet is belied by both the evidence and the fire captain's own testimony.  You can't just go through whatever you feel like -- without a warrant -- just because you're investigating a potential fire.  Yeah, the fire captain opened the cabinet for a reason.  But not because he had any indication that there was a fire or something dangerous there.  Not even reasonable suspicion.  Much less the type of probable cause or exigent circumstances to justify a warrantless search of a residence.

This one seems easy to me.  Notwithstanding the split panel. 

Tuesday, May 04, 2021

Krake v. City of Santa Barbara (Cal. Ct. App. - May 4, 2021)

Well this is interesting.

You typically think that you only need a Coastal Development Permit and the like to remodel or build a new house on the coast.  But the Court of Appeal holds that cities also need a CDP -- or an amendment to their certified Local Coastal Program -- to ban short-term vacation rentals.

Not what an uninformed observer might have thought was the law.  Yet there you have it.

Monday, May 03, 2021

People v. Nieves (Cal. Supreme Ct. - May 3, 2021)

I understand that death penalty opinions by the California Supreme Court are often lengthy.  Super lengthy.  Lives are at stake, so a certain degree of comprehensiveness is appropriate.  For that reason, the fact that today's opinion contains over 140 page of text (!) doesn't freak me out.  I'll read the whole thing.  It takes me a ton of time, but okay, I get it.

I also understand and appreciate that opinions like this one often read like lengthy bench memoranda.  The whole structure of today's opinion -- going through each point individually, reciting defendant's argument, then reciting the prosecution's argument, then analyzing these arguments and coming up with an answer, then going to the next point and doing the exact same thing -- is something you see time and time again in cases like this.  Whereas, thankfully, in a "normal" opinion you get a lot more synthesis of these analytical parts.  Which in turn makes them (1) much more concise, and (2) much less of a deadly boring read.

But, again, I get it.  It's a super long opinion.  It's not like the justices themselves are writing the first draft.  And they've got lots of other cases to think about.  So, yes, the structure is undeniably plodding, and a burden.  But okay.  We'll deal. 

What miffs me a tiny bit, however, is when opinions like that also keep the reader guessing, and make 'em plod through the whole 140 pages to get the bottom line.  To be sure, Chief Justice Cantil-Sakauye tells us in the first page that the Court unanimously affirms the conviction but reverses the death sentence.  But to even get a glimpse as to why you have to read, and read, and read, and read, and then finally at about page 80 (!) you stumble across your first hint as to maybe what the problem was.

The opinion is super, super long.  It can afford one more paragraph at the beginning.  Something like:  "The trial judge made a plethora of errors that we conclude deprived defendant of a fundamentally fair penalty proceeding, including improper exclusion of a defense expert, exclusion of relevant PET scan evidence at the penalty phase, exclusion of relevant evidence about the defendant's character and good qualities, imposition of improper discovery sanctions on the defense, and repeatedly and improperly inserted himself into the trial by impermissibly demeaning counsel for the defendant in front of the jury and interjecting one-sided and nonneutral questioning of defendant's witnesses."  That one sentence -- or something like it -- would at least give a hint as to what to look for.  Sure, omitting it perhaps leaves the reader in suspense, which in different contexts might perhaps be exciting.  But in the context of an 140+ page death penalty opinion, I'm most assuredly not in favor.

That's my comment on style.  As for substance, I've only got one doctrinal point about the whole thing.  Defendant gets sentenced to death for burning her house down and thereby killing four of her young children (her fifth child was also in the building but escaped the fire).  A fairly horrible crime.  Now, the Defendant was also in the house, and intended to die alongside her kids.  You might think that in the pantheon of horrible things she's done, the fact that at least she was trying to contemporaneously kill herself as well might be one of her "better" (for lack of a superior word) decisions.  Or at least a factor in mitigation.

But here, it actually gets her sentenced to death.

On page 75, the Court notes that, normally, committing arson as a way of killing someone doesn't make you death eligible; you've got to have something "else" in aggravation.  Some other felonious purpose for setting the fire other than killing the individuals therein.

So what other felonious purpose does the Court find here?  The bottom of page 76 gives you the Court's answer:


So if she'd have just set the fire to kill the kids, barring anything else, she'd get life in prison.  But because she also wanted to kill herself in the fire, she's sentenced to death.

Weird, eh?  You wouldn't think the law would -- or should -- work that way.

Perhaps she would have been death eligible on other grounds.  But to hold that she's eligible for the death penalty because she tried to kill herself just seems totally bizarre to me.

That, anyway, is the little nugget out of the middle of an opinion that took me a couple of hours to read.

Oh, one more thing.  The Chief Justice does a great job of explaining in exhaustive detail just how the trial court erred in its incredibly one-sided participation in the case.  It's a fairly stunning set of facts.  If you have an hour or so, definitely check it out.  It starts at about page 80.  The trial court definitely did things that he shouldn't have, and did not display (at all) the sort of neutrality that one hopes for -- and legitimately expects -- in any trial, and certainly in the death penalty case.  Instead, you see an angry, sarcastic, and just downright mean judge who's not displaying the type of temperament at all that you want from the bench.

But the opinion doesn't mention the name of the trial judge.  So I looked it up.  (It's also in the bottom of the caption, at the very end of the opinion, alongside the counsel, "original proceeding" notations, etc.)

The trial judge in this case was L.A. Superior Court Judge L. Jeffrey Wiatt.  Who killed himself in 2005 after being visited by the police about allegations that he had molested a child.  Five years after handing out the death sentence in this case.

Not relevant at all, of course.  Nor mentioned in the opinion.  But interesting nonetheless.

Thursday, April 29, 2021

People v. McInnis (Cal. Ct. App. - April 29, 2021)

I'm generally not a huge fan of LWOP (life without parole) sentences.  Particularly for younger offenders.  There's too much of a chance that after two or three decades in prison, they'll have changed and be worthy of a life outside.

That said, after reading this afternoon's opinion by Justice Miller, my overall reaction was:  "I'm glad this guy won't be on the street anymore."  He's 28.  He forcibly raped a 15-year old girl walking to school -- and maybe tried to rape and 18-year old UC Berkeley student (the jury deadlocked 11-1 in favor of guilt on the alleged crimes regarding her).  Plus he's got a long rap sheet.

When you read even more about his alleged crimes, my basic response was:  Yeah, that's a bad guy.  High Desert State Prison -- where he's currently incarcerated -- seems about the right place for him.

People v. Powell (Cal. Ct. App. - April 28, 2021)

This opinion by Justice Murray is eminently notable for a variety of non-substantive reasons.

First, it's incredibly long.  I mean:  LONG.  It's not just that it tops out at 95 (!) pages.  But it's also intensely detailed and -- with respect -- a bit plodding.  The statement of facts alone consists of over 25 pages of text; longer than the entirety of most opinions.  When you're done with that, you've only got 70 or so pages of legal and factual analysis to slog through.  Whew.

Second, Justice Murray refers to many of the individuals in the case by their initials.  So throughout the 90+ pages of text you've got to keep from mixing up J.P., J,D., J.S., T.B., S.H., and T.G. (plus anyone else whose initials I can't happen to recall right now), as well as all the other various named participants.  (It doesn't help that lots of the main players in the opinion have initials that begin with "J.")  To take but one example from the opinion, here's one representative paragraph:  "Thereafter, Langlois, Powell, J.D., J.P., and T.B. left the Papaya Drive house in T.B.’s Volkswagen bug. T.B. was driving, J.D. was in the front passenger seat, and Powell, J.P., and Langlois were in the back seat. J.D. told T.B. where to go."

That's a lot of initials for any opinion.  Particularly a 95-pager.

I get why Justice Murray does this. California Rule of Court 8.90 asks courts to "consider" using initials (or first names and last initials) for victims in criminal proceedings, and the California Supreme Court and Style Manual make similar suggestions for minors and victims of sex crimes.  But this isn't a sex crimes case, and for lots of the victims here, I'm not sure it really matters if they're named.  At the very least, I'd have used first names and initials to try to make things clearer, particularly given the length.  This might be a good example of an opinion in which the best of intentions ends up going overboard, and at the expense of readability.

Third, Justice Murray does something with one of the initials that I think I've seen before, but that's undoubtedly rare.  One of the initials -- "J.D." -- is made up.  It stands for "John Doe."  That's not the person's name (or initials), but Justice Murray explains that he's using those initials because "Doe" took a plea deal and testified for the prosecution, and is now incarcerated.  In short, he's a snitch, and Justice Murray is worried that referring to him by his name might potentially result in harm to him in prison.

Okay, I get it.  Again:  Great intentions, no doubt.  But I'm not really sure that using his actual initials would have ratted the guy out; they're not unusual (e.g.,, "X.Z.") or anything.  Or, at a minimum, if we are calling the guy Doe, maybe just call him "Doe" rather than "J.D." -- particularly given all the other "J." initial people in the opinion.  I get the "consistency" point, but this one cries out for an exception.

Plus, honestly, I don't really think there's really much utility here.  This was a murder case, and one that was reported in the press a fair bit.  (The murderers accidently killed the wrong guy, so it was one that's a bit memorable, even if not particularly high profile.)  Anyone who cared even in the slightest could easily find out the real name of "J.D." in about ten seconds from any of the numerous published press stories about the murder and/or prosecution.  So, yes, "J.D." will be in prison until at least 2037, and we don't want extrajudicial "justice" dispensed therein.  But I'm not sure we're really accomplishing much by calling him a "Doe" and adding yet more initials to the puzzle.

Finally, particularly given all the dizzying array of initials (alongside the full names of a huge number of participants), I found one decision by Justice Murray to be fairly unsupportable.  It's a murder case, which means (by definition) that someone was killed.  Yet Justice Murray doesn't mention the victim's name even once.  Or even use initials.  He's simply referred to as "the victim".  Period.  A reference that appears over a hundred times in the opinion.

That's not right, IMHO.  The victim is dead.  He's not going to be harmed by mention of his name.  If anything, his name deserves mention, because he's a person, and he's gone.  So no initials.  Full name.  Out of respect for the dead.  

And that's not just my rule, either.  The California Supreme Court has issued a clear policy statement to the appellate courts that "Anonymity . . . is inappropriate for homicide victims, who are to be identified whenever possible."  Even before this -- as one of my astute readers once wrote to me -- "[t]he ironclad rule forever was that murder victims must be named in court opinions, if for no other reason than to give them dignity."  

True that.

The victim's name was Jack Swaim.  I understand why Justice Murray leaves it out, since the opinion repeatedly refers to the victim's son as "J.S." -- so if you know the victim's name is Jack Swaim, you know that the "S" stands for "Swaim" and can probably figure out that his son Jimmy is the "J.S." in the opinion in short order if that's what you're looking for.  (Plus, if you refer to the victim as "J.S.", then there are two J.S.'s in the opinion, which is even more confusing than the thing is already.  Following Justice Murray's reasoning, maybe you could then refer to the son as "John Roe" and use "J.R." or something, but see how crazy this is getting?)

But, again, while I understand the intent, if it's me, I'm definitely naming the victim.  As I do in this post.  It's more readable that way as well as infinitely less impersonal.  Mr. Swaim's last words appear in the opinion; so should his name.

Monday, April 26, 2021

Loomis v. (Cal. Ct. App. - April 26, 2021)

It's nice when the Court of Appeal includes a helpful summary of the holding at the outset.  As Judge Ohta -- from Los Angeles, and sitting on the Court of Appeal by designation -- does today.  He says:

"Kisha Loomis brought suit against LLC (Amazon) for injuries she suffered from an allegedly defective hoverboard. The hoverboard was sold by a third party seller named TurnUpUp through the Amazon website. The trial court granted summary judgment in favor of Amazon. The primary issue on appeal is whether Amazon may be held strictly liable for Loomis’s injuries from the defective product. Recently, the Fourth District addressed this issue as a matter of first impression in Bolger v., LLC (2020) 53 Cal.App.5th 431 (Bolger), review denied November 18, 2020. Bolger held Amazon “is an ‘integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products.’ ” (Id. at p. 453.) Our own review of California law on strict products liability persuades us that Bolger was correctly decided and that strict liability may attach under the circumstances of this case. We reverse and remand with directions."

That's indeed a robust description of what the opinion holds.  Don't need to add much more to understand the Court of Appeal's holding.

One that's important both practically -- for those who've purchased things from Amazon (which is almost everyone) -- as well as doctrinally.

Justice Wiley writes a concurring opinion that basically consists of a brief overview of the history of strict liability in California and an explication of why imposing such liability makes sense from a cost-benefit standpoint.  Justice Wiley wasn't a torts scholar when he taught at UCLA, but his analysis reminded me a ton of my first-year torts class in law school.  It was super heavy on theory.  Professor Rosenberg said in my class lots of the same things that Justice Wiley says in his concurrence.  So a walk down memory lane for me.

Friday, April 23, 2021

In re Marriage of Maher and Strawn (Cal. Ct. App. - April 22, 2021)

Imagine that you're an attorney in San Diego.  (As some readers undoubtedly are.)  You've been married for 18 years, but your marriage has ended.

You lived fairly well when you were married.  Your spouse has a PhD and has a job with a pharmaceutical company.  She makes a fair chunk of change:  $28,000 per month (over $335,000/year).  You're no slouch yourself, and was making $100,000-$200,000 as a lawyer.  During the marriage, you and your spouse "lived in a $1.8 million, 4,500 square foot home, took expensive vacations, and spent about $8,000 per month on credit cards which they monthly paid in full [and] amassed a 420 bottle wine collection."  One time, you guys spent $20,000 for a one-week Maui vacation at the Four Seasons.  Life was good.

But now, you're divorced.  And you're sort of bitter at the amount of spousal support you received in the trial court.  You were only awarded $4,000/month -- around $50,000/year -- and even that amount steps down to $3,500/month in May 2021 and then to $2,500/month in May 2022.  You're 60 years old at this point.

Sure, you want more.  And you're an attorney, after all.  Why not file an appeal?

Maybe because the opinion might be published.  With your full name contained therein.  As well as each of the following facts about you:

"David has sleep apnea, insomnia, post-traumatic stress disorder (PTSD), anxiety, and severe depression. He testified that crowds, traffic, and noise make him nervous, afraid, and exacerbate his anxiety and PTSD. He remains mostly alone in his apartment and has to 'force' himself to socialize. Yet on cross-examination, David admitted traveling to Las Vegas in 2018 where he attended an indoor rock concert. He also attended 'a few concerts' at the Del Mar fair with a 'social group' and at the House of Blues.

David takes Valium “a couple times a day,” along with antidepressants, anti-anxiety drugs, and hydrocodone—an opioid. He also drinks “three to four” glasses of wine nightly, although he denies having a “drinking problem.” David could not “recall” whether any physician told him to not mix alcohol with his medications. He spends about $600 per month on wine— three times his child support obligation. . . . 

Still, David has worked occasionally as a track and field coach, which he enjoys. In 2018, for example, he earned about $1,000 as a high school track coach and was named “field coach of the year.” He is certified to coach through the college level. In 2017 David obtained a substitute teaching certificate, but he never sought those jobs because he does not awaken until noon (due to his sleep disorder). He is unwilling to work tutoring grade school or high school students, stating he has “patience issues.” . . .

The parties separated in 2016. The triggering event was when David (who is six feet, three inches tall, and weighs about 300 pounds) punched Laurie in the face and slapped her during intercourse. Her nose bled 'all over the bed.' The next day, he assaulted their son (then 17 years old). Both David and the son sustained injuries in the ensuing fist fight. Laurie told responding police officers, 'My nose still hurts, and I think it might be broken. Today he was worse than usual.' Despite David’s testimony at trial denying that he ever hit Laurie, in September 2016 the court issued a domestic violence restraining order against him. . . .

[B]eginning in 2005, the family home became in Laurie’s words, a “hovel” and “squalid.” They lived on bare cement floor after a flood ruined hardwood flooring and bedroom carpet. Laurie testified that “it really became bad once [David] started shopping obsessively online and just piling things up all over the house.” According to Laurie, in addition to leaking toilets and no flooring, three of four showers were not functioning, the pool was a “swamp,” and the home needed $70,000 in repairs to make it livable before it could be sold. 

After separation, David moved to a 1,200 square foot apartment that he rents for $2,800 per month. The garbage disposal, microwave, shower, and refrigerator are inoperable. David has not asked the landlord to repair the appliances because he continues to live in squalor and is embarrassed to have anyone inside his apartment."

You couldn't pay me enough to risk having details like that contained in a published opinion.  What the trial court said was bad enough.  But at least that was unpublished.  Having everyone and their neighbor read the sordid details of one's downfall and life would, for me, be a burden far too great to bear.

(Here's what the trial court said:  "“It is difficult to put a word to the parties’ marital standard of living—appalling comes close. They lived in a filthy refuse strewn home with each evening dedicated to drinking a bottle of wine each. ([Laurie] testified [David] would not allow her to clean the house while he was home, and he seldom left.) The court rarely casts marital standard of living in terms of spendable income; it is particularly inappropriate here . . . .” [¶] . . . [¶] “The court is not confined to choosing upper, middle or lower, none of which describe the parties’ living conditions. At [date of separation], [David] was living in a squalid house strewn with garbage, refuse, discarded items left to sit where they dropped and rooms filled with empty cardboard boxes from his online shopping . . . . He has maintained that same standard of living.” [¶] . . . [¶] “None of [David’s] evidence supported his claim he needed over $15,000/month to meet the marital standard of living. Given the condition of his apartment . . . and the condition of the parties’ home at [date of separation], he is presently maintaining nearly the marital standard of living by living in squalor, drinking a bottle of wine each day and eating fast food.”)

Justice Dato also gets in some shots as well.  Including a funny little reference to Sin City, saying: "[T]he trial court was entitled to, and did view with skepticism David’s claimed inability to work. For example, David claimed that crowds and noise trigger his PTSD and crippling anxiety. But David flew from a presumably busy airport to Las Vegas, a town not known for monastic solitude."  

"Monastic solitude" indeed.

There was one portion of the opinion the merits of which I was uncertain.  Justice Dato at one point says:  "There is also substantial evidence that David has the opportunity to work. In 2017 David passed the test necessary to work as a substitute public school teacher. A vocational expert testified that an entry level teaching job pays about $58,000 per year. There is a strong demand for math and science teachers. David would be “highly competitive” for a teaching position because he has experience working with high school students and holds a Ph.D. in biochemistry. Although David would have to spend a year to obtain a teaching credential, in the interim he could work as a substitute teacher (earning about $125 per day), for which there is a current demand."

Uh, yeah, maybe.  But I'm not so sure there are a ton of schools that'd be thrilled to hire a 60-year old former lawyer with a domestic violence restraining order who routinely pounds alcohol alongside opoids and who sleeps until noon every day.  Those facts -- in a published opinion, no less -- might give potential employers pause, no?  Generalized "current demand" or not.

You learn all this, and more, about (currently inactive) San Diego attorney David Maher from Justice Dato's opinion.  A woeful tale, indeed.

Tuesday, April 20, 2021

People v. Braden (Cal. Ct. App. - April 20, 2021)

The California Supreme Court should obviously grant review of this opinion.

It's not that Justice Raphael's opinion is necessarily wrong.  It's not.  He holds that if a defendant wants to request pretrial mental health diversion, she's got to do so before the trial starts, not (as here) after the verdict but prior to sentencing.  Otherwise, he says, defendants could "game" the system by only asking for diversion after trying their hand at an acquittal.

Maybe that's right.  It certainly does waste some time to have a trial if we're just going to grant diversion anyway and dismiss the case.

But maybe it's wrong.  Maybe it's just like like imposing a suspended sentence.  And, in any event, maybe we're okay with defendants saying that they're innocent -- say, asserting that they didn't have the required means rea for the offense -- but also saying that, if they're guilty, it's nonetheless due to their mental health problems and hence qualify for diversion.

Regardless, a prior opinion of the Court of Appeal held that pretrial diversion could be requested after trial, and today's opinion says it can't.  That's a straightforward conflict, and on an issue that recurs in innumerable cases.  So the California Supreme Court has to figure out the right rule.

As soon as possible. 

Monday, April 19, 2021

Seachris v. Brady-Hamilton Stevedore Co. (9th Cir. - April 19, 2021)

Usually, the best way to get something is to ask for it.  At least in a legal setting.

But on rare occasions, the subtle strategy of letting the tribunal come up with its own remedy works like a charm.  As it does here.

Petitioner wants more attorney's fees than the ALJ granted her, so files an appeal.  The Ninth Circuit decides that, yes, the ALJ made a couple of legal errors in reducing the fee award, so remands the case.

Nothing especially unusual about that.

Normally, the case would then go back to the same ALJ.  And Petitioner didn't request otherwise.

But the Ninth Circuit's having none of it.  Judge Tashima and the panel decide, sua sponte, to order reassignment to a new ALJ on remand.  On the theory that the history of the litigation establishes that the current ALJ "may not be able to provide [Petitioner] with a fair and impartial hearing on remand."

Reassignment is an extraordinary remedy.  Reassignment sua sponte adds yet another exceptional act as well.

Mind you, there may be a reason why the Ninth Circuit reaches out the way it does.  The panel seems to be more than a little bit miffed that the ALJ didn't take kindly to being reversed by the Ninth Circuit in an earlier stage of the litigation, and thus entered a series of orders that the Ninth Circuit thought questioned the decision on appeal.  The panel was having none of that.  Hence the reassignment.

Basically a little slapdown of the ALJ to remind her who's boss.

Wednesday, April 14, 2021

Wexler v. FAIR (Cal. Ct. App. - April 14, 2021)

The majority and the dissent ostensibly disagree vigorously in this case.  But I'm not really certain they do.  Or at least don't think they disagree in the fundamental way alleged.

Here's how Justice Stratton's dissent puts it.  A characterization that's not absurd -- though, as I'll note in a second, perhaps isn't entirely accurate either:

"Everyone check your homeowners insurance policy. Be especially vigilant if you live in the quarter of California households which are multigenerational, or are one of the 40 percent of California parents whose adult children have moved back home. Those other adults in your household have probably accumulated personal property of their own. According to the majority, if you, as the homeowner and a named policyholder, try to protect your family members by paying a premium for a policy that purports to provide coverage for the personal property of resident family members, you are benefitting the insurance company, not your family members. If your family member’s personal property is damaged, you will not be able to recover for that damage because you do not have an ownership interest in that property. Your family member will not be able to recover because the insurance company, which did not request or require you to identify the family member by name, will be able to deny coverage because you did not identify the family member by name. The insurance company gets to keep your premiums, which is a pretty sweet deal for the insurer but not for you or your family member."

The part that's undoubtedly true about what Justice Stratton says is that under the majority's opinion, the other adults have no standing to sue under your insurance policy.  That's squarely the holding, and results in the dismissal of the adult child's claim in the present case.

But the part of Justice Stratton's dissent that seems fairly clearly false -- at least to me -- is the critical part in which she says:  "If your family member’s personal property is damaged, you will not be able to recover for that damage because you do not have an ownership interest in that property."  As I read the majority opinion, that's wrong.  The parents can, indeed, sue, and then (if they want) give the money to the adult children whose property was damaged.  Sure, Justice Wiley's opinion isn't nearly as clear as I would have it be on this point, and you have to slog through a lot of history and tangential analysis to get to the ultimate practical reality.  But Justice Wiley says:  "This fundamental understanding of the insurable interest doctrine makes it plain the Talbots had an insurable interest in Wexler’s property stored in their house while Wexler lived there with them."  Which means that the parents are indeed allowed to recover for whatever property of their adult kid got damaged, which in turn means that the scenario advanced at the outset of Justice Stratton's dissent doesn't actually exist.

Moreover, it seems like Justice Stratton may well know that this is the case.  Remember:  She starts her dissent with the claim that under the majority's opinion, "[i]f your family member’s personal property is damaged, you will not be able to recover for that damage because you do not have an ownership interest in that property."  But, as I've suggested above, that's not actually true, and later in the dissent, Justice Stratton says:  "The majority is unconcerned with Wexler’s inability to assert her own interests because it mistakenly believes that the Talbots can recover on behalf of Wexler."  She then goes on to explain that, in her view, the parents can't recover on behalf of their child because the parents don't have an "insurable interest" in their adult child's property.  (Arguing that "[t]here is nothing in the FAC to support the majority’s belief that Wexler’s personal property is 'family property' and so the Talbots can recover for its loss. To analyze around the concept of insurable interest is not only strained, but it ignores a keystone of California insurance law.")

The problem with Justice Stratton's analysis, however, is that the majority opinion expressly holds that the parents have an insurable interest in the child's property.  Hence can sue.  So it's not -- as a practical matter -- that the parents "will not be able to sue" for the property.  They definitely can.  How do we know that's true?  Because the majority expressly so holds.

What Justice Stratton is really saying is that, in truth, the parents do not have an insurable interest in the child's property.  And without an insurable interest, the parents can't sue.  She might perhaps be right as a doctrinal matter.  But once the Court of Appeal holds -- as it clearly does here -- that the parents have an insurable interest, then the parents can sue.  Period.  Hence obviating the (admittedly) disastrous consequences with which Justice Stratton begins her dissent.

So the real dispute between the majority and the dissent, in my view, is simply over how to achieve doctrinally the result on which they both agree.  Justice Stratton says that the child should be able to directly sue over the destruction of her property, either as a third party beneficiary or through other doctrinal or policy-specific means.  Justice Wiley, by contrast, says that the parents get to sue.  No one disputes that someone gets to sue.  It's simply a fight over which one -- parent or child -- has the right.

Which makes the consequences of today's opinion much less practically significant.  Sure, there might be some instances in which the parent and children are estranged or the like, or there are some other barriers to getting the kid the money from the insurance company for her destroyed property.  But in most cases, the solution's an easy one under majority's holding:  have the parents sue for the damage and give the money to the kid.

Yes, Justice Stratton would be right that this solution doesn't work if -- as she believes -- the parents don't have an insurable interest in the property.  But the majority holds they do.  Hence they do.  And can sue.  Problem solved.

You can get their either Justice Wiley's or Justice Stratton's way -- and, doctrinally, one of those ways might be right (or preferable), but either way, you get there.  Thankfully.

It's unfortunate, I think, that the opinions are written the way they are.  I would have preferred that Justice Stratton not begin her dissent with the ostensible consequences of the majority opinion, both because I think they're unreal and because I fear that some future litigants (e.g., insurance companies) might use that analysis to their advantage in future litigation or settlements.  Similarly, I would have preferred for Justice Wiley to have more clearly and repeatedly said that what Justice Stratton says in her dissent is false:  That, yes, parents can sue.  He says so, and I think clearly.  But, personally, I'd have responded more directly and repeatedly to the dissent.  As majority opinions sometimes do.  If only to make it crystal, crystal clear.

Monday, April 12, 2021

U.S. v. Ghanem (9th Cir. - April 12, 2021)

Here's a very well-reasoned opinion by Danny Boggs, a Reagan appointee (!) who's sitting on the Ninth Circuit by designation from the Sixth.  It's about an arms dealer who's sentenced to 30 years in prison, so the underlying case is a big deal.  Though the opinion is basically about venue -- not exactly the most exciting criminal law topic of all time.

Still, it's definitely worthy of a read.  I wish I could write so well after 35+ years on the bench.

Or even one.

Wednesday, April 07, 2021

Peviani v. Arbors at California Oaks (Cal. Ct. App. - April 6, 2021)

I wouldn't have thought this class action would be certified.  I also wouldn't have thought that the trial court's refusal to certify the thing would be reversed.

Yet reversed it was.

I must say, though, that Justice Miller's opinion is fairly persuasive.  He's not necessarily saying that the class action must be certified.  The Court of Appeal simply holds that the trial court applied the wrong legal standards in places.  And, in retrospect, that's probably right.

Might you, I wouldn't at all be sad to see the class in fact certified.  From what I read in the opinion -- and from the Google reviews of the property -- the apartment complex at issue is indeed a disgusting place to live.  Definitely not a place I'd want to be, nor a place I'd want to have in charge of my security deposit.

Still, I'd have thought that the individual issues would predominate over the class claims.  Yet Justice Miller rightly points out that there are indeed some fairly solid common issues capable of classwide proof; e.g., the condition of the common areas and whether various advertisements were false.  So, yeah, maybe some of the claims in the action can indeed be certified.

We'll see on remand.

Meanwhile, even though the pictures look nice, word on the street -- or at least in the Court of Appeal -- is that you should think twice before necessarily believing that the Arbors at California Oaks are indeed the "luxury apartments" they purport to be.

'Cause it don't sound good.

Monday, April 05, 2021

Lent v. California Coastal Commission (Cal. Ct. App. - April 5, 2021)

Warren Lent and his wife Henny bought an oceanfront property in Malibu in 2002 in which there's a five-foot easement for public access to the beach -- an easement that the Coastal Commission required as a condition of building the underlying residence.  Unfortunately for them, there was a deck and stairway to the beach that blocked half of the easement; plus a gate entirely blocking access to the easement area.

I can't tell from the opinion whether the Lents knew about the easement violation when they bought the property.  Regardless, it's their problem now.  Five years after they bought the property, the Commission asked the Lents to take down the gate and the staircase that were blocking the easement.

At this point, the Lents had two options:  (1) Take down the gate and stairs and find another place to put the stairs to "their" beach, or (2) Tell the Coastal Commission to pound sand.

They chose the latter.

What followed was a lengthy fight over access to the beach.  And I mean lengthy.  The request was made in 2007.  In between then and now, there were letters, administrative hearings, a writ of mandate, and (in the end) today's trip to the Court of Appeal.

The Commission didn't like the Lents' refusal to take down the stairs.  It thought that this was an egregious violation.  So it socked the Lents with a fairly monster-sized penalty:  $4,185,000.

That's a big chunk of change.  At the same time, we're talking about a long time of blocking access to the beach, and in an arguably egregious fashion.  I also suspect that the underlying beachfront residence in Malibu is worth . . . a lot.

The Court of Appeal concluded that what the Commission did was perfectly fine.  So it reinstated the penalty (which had been vacated by the trial court).  So no more gate, no more stairs, and $4.1 million (plus their not-insubstantial attorney's fees) less for the Lents.

That's definitely a big hit.  That said, Warren Hent appears to be a plastic surgeon in Beverly Hills (with the web site "" no less -- and one with an oceanfront Malibu home to boot.  So I suspect that Warren and Henny can pay the fine.

Still.  It's a biggie.

Maybe they should have removed the encroaching deck and gate in the first place, eh?  

Friday, April 02, 2021

Tsasu LLC v. U.S. Bank Trust (Cal. Ct. App. - April 1, 2021)

This looks like a fairly lucrative scheme -- some might say scam, but I know nothing beyond what's in the opinion.  The lawsuit isn't about what the borrower did, and involves instead who's left holding the bag at the end of the whole thing.  But if you're in need of a half million dollars or so, here's apparently one way to go:

"This action deals with a parcel of property located at 9800 South 5th Avenue in Inglewood, California (the property). In February 2007, Cassandra Celestine (Celestine) borrowed $448,000 from CIT Group/Consumer Financing (CIT Group); CIT Group secured its loan with a deed of trust in the property that was recorded on February 28, 2007 (CIT Deed of Trust). Celestine paid the first three monthly payments on the loan, and then stopped making payments.

In early September 2012, CIT Group assigned the CIT Deed of Trust to U.S. Bank, N.A. as trustee on behalf of SASCO Mortgage Loan Trust 2007-RNP1 (SASCO). (Footnote: Prior to this assignment, a false grant deed was recorded that purported to convey the CIT Deed of Trust back to Celestine. Celestine later agreed to set aside the false grant deed.) The assignment was recorded on September 26, 2012. In early June 2014, SASCO assigned the CIT Deed of Trust to DLJ Mortgage Capital, Inc. (DLJ Mortgage). The assignment was recorded on June 13, 2014.

On July 3, 2014, which was less than a month after the assignment to DLJ Mortgage, DLJ Mortgage recorded—and mailed to Celestine—a notice of default setting forth the outstanding balance Celestine owed to DLJ Mortgage and giving her 90 days to pay. Before the 90-day deadline expired, Celestine on September 11, 2014, filed a lawsuit (the Celestine Action). Proceeding as a self-represented litigant, Celestine alleged 12 claims, including a claim under the Act to invalidate the CIT Deed of Trust. She filed a notice of lis pendens regarding her lawsuit on September 23, 2014.

Although SASCO and DLJ Mortgage had recorded their assignment of the CIT Deed of Trust and although Celestine had exchanged letters with the loan servicers reaffirming that SASCO and then DLJ Mortgage had acquired the CIT Deed of Trust from CIT Group, Celestine did not name SASCO or DLJ Mortgage as defendants. Instead, she named only (1) CIT Group, and (2) “All Persons Known & Unknown Claiming Any Legal Or Equitable Right, Title, Estate, Lien, or Interest In The Property Described In The Complaint Adverse To Plaintiff Title Or Any Cloud On Plaintiff Title Thereto.” What is more, Celestine did not properly serve CIT Group with the complaint.

As a result, no one with an interest in the property was ever served with Celestine’s complaint and, consequently, no one ever appeared. On October 29, 2014, Celestine obtained a default. On May 28, 2015, the trial court entered a default judgment quieting title to the property against CIT Group and permanently enjoining CIT Group and its “successors in interest” from “[a]sserting . . . any interest or ownership” in the property, including through the CIT Deed of Trust (2015 Quiet Title Judgment). The 2015 Quiet Title Judgment was recorded on July 22, 2016. On August 4, 2016, the trial court issued an order expunging the CIT Deed of Trust and declaring it to be “Reversed, Cancelled, Set Aside and made Null and Void, Ab Initio, for all purposes” (2016 Expungement Order). The 2016 Expungement order was recorded on August 10, 2016. . . .

On September 2, 2016, Celestine borrowed $285,000 from Tsasu, LLC (Tsasu); Tsasu secured its loan with a deed of trust against the property that was recorded on September 15, 2016 (Tsasu Deed of Trust). . . . Celestine [] stopped making payments to Tsasu."

Sure, the property eventually gets foreclosed upon.  But in the midst of these false deeds and the like, Celestine retains possession of the thing for around a decade, plus gets the $700,000+ in loan proceeds without making virtually any payments at all on the things.

Works out well for her.  The lenders:  Not so much.

Wednesday, March 31, 2021

Friends of the Earth v. Sanderson Farms (9th Cir. - March 31, 2021)

There's a lot about this opinion by Judge McKeown that's really good.  It's a tight, coherent and well-explained disposition.

But there's one part that seems to me very much unlike the others.  And that might make for some really bad law.

The issue is what it takes to have organizational standing.  Friends of the Earth and the Center for Food Safety are two organizations that care deeply about not using antibiotics in food production.  While many chicken "producer" companies have phased out the routine use of antibiotics, Sanderson Farms hasn't, and that matters a fair piece, because Sanderson sells its chickens to (amongst others) Olive Garden.  So the two organizations put out blog posts and other literature that try to educate people about the dangers of Sanderson Farms' practices and its ties to Olive Garden.

In August 2016, the two organizations became aware that Sanderson marketed and advertised its chicken products as “100% Natural” and ran advertisements stating that there were “[n]o antibiotics to worry about here.”  Claims to which -- understandably -- these public interest groups took umbrage.  After conducting investigation into these claims, in 2017, the two organizations sued Sanderson for false advertising.

The question is whether the organizations have standing to file this suit.  Everyone agrees that the groups have organizational standing if they diverted organizational resources to respond to the false advertising, whereas everyone also agrees that there's no standing if they simply carried on their "business as usual."  What's in dispute is where the dividing line exists between these two poles and on which side the facts of the present case happen to fall.

Judge McKeown concludes that the district court didn't err when it found that the organizations didn't have standing because they didn't “expend[] additional resources that they would not otherwise have expended [] in ways that they would not have expended them.”  There's lots in her opinion that supports that conclusion, and overall, I get the disposition.  For the most part, the organizations appear to have kept on doing what they were already doing.

Here's the part of the opinion, though, that I found infinitely less persuasive than the remainder.

After exploring all the things the organizations didn't do differently, Judge McKeown says:

"Once Sanderson’s misleading advertisements were brought to the attention of the Advocacy Groups, they simply continued doing what they were already doing— publishing reports on and informing the public of various companies’ antibiotic practices. This evidentiary void cannot be filled by emails in which the Advocacy Groups’ employees shared articles about Sanderson’s practices and deceptive advertisements, querying internally whether something should be done; evidence of any diversion of resources remains missing."


It seems to me a profoundly bad rule that "diversion of resources" can't be found when the diversion is simply internal.  Moreover, unlike the remainder of the opinion, this particular holding in the opinion isn't supported by analysis and/or precedent; it just sits there.

Imagine, for example, that an organization becomes aware of a particular company's false advertising and is profoundly worried about it.  It thinks it might decide to sue, or maybe start a new advertising campaign, or (perhaps) do nothing.  So it hires a new employee to investigate the advertising and make sure it's false and harmful; moreover, two existing employees of the organization spend 25% of their time reviewing the new advertising and deciding what should be done.  There are emails, memoranda, and the like that confirm all of this internal activity.  Ultimately, the organization decides to file suit, and the defendant moves to dismiss for lack of organizational standing.  Let's also stipulate that the organization hadn't conducted any new campaigns or the like in response to the new advertisement prior to filing its lawsuit. 

Judge McKeown is undoubtedly right that you can't create standing by simply pointing to the resources spent filing (or prosecuting) the lawsuit itself; for that reason, she cuts off any "diversion" at the point at which the organizations filed suit.  (This may perhaps be an overly broad application of the rule, but that's a separate point.)  But, to me, the organizations undoubtedly have organizational standing in the hypothetical I've described notwithstanding the fact that all the diversion of resources was "internal" to the organization.  The standard is whether the entity “expended additional resources that they would not otherwise have expended, and in ways that they would not have expended them.”  Yes, one of the ways you can expend additional resources is to do things externally; new campaigns, new advertisements and the like.  But that's not a categorical rule; or, at least, I didn't see that as a categorical rule before today.  If the false advertising causes you to waste money internally, that seems like it fully qualifies as well, so long as you're (as in the hypothetical) spending money in ways you weren't spending it before.

For that reason, it seems wrong to say that organizational standing can't be created by, inter alia, "querying internally whether something should be done" -- if that results in a diversion of resources, yeah, that counts.  If you hire a thousand new employees to consult on and decide whether a new campaign should be conducted in response to the false advertisement, you've got standing; ditto for one new employee, or a diversion of twenty percent of an existing employee's time.  That's time and effort (and money) that can't be spent on what you're ordinarily doing, and it creates standing.

So the principle that Judge McKeown espouses seems just wrong as a categorical matter.  Now, I could potentially see her (or the district court) perhaps saying something like "the diversion here was simply de minimus" and that a couple of emails (or whatever) doesn't count as an actual "diversion".  But the fact that the diversion was internal doesn't matter to me.  And saying that "querying internally whether something should be done" can't create standing just seems wrong.  I think it can, as well as should.

I agree that a stray email or two won't count.  But that goes to the quantum of evidence, not its quality or nature.  You get enough internal emails, and, yeah, that's sufficient diversion and standing -- after all, while the virtual ink is free, the employees' time isn't.  Make a false advertisement and make a group spend tons of internal money deciding what to do about it and, yep, they've got standing to sue.

At least in my view.

Monday, March 29, 2021

Yue v. Yang (Cal. Ct. App. - March 29, 2021)

You occasionally see family law cases in the Court of Appeal in which both sides represent themselves, but even that is rare.  It's even less often that you see non-lawyers represent themselves in regular civil cases, and extraordinarily uncommon to see such cases result in published opinions.

Yet here we are.  A published opinion about personal jurisdiction in California over allegedly defamatory conduct over the Internet.

I'm not certain that the opinion desperately needed to be published, since it's largely fact-specific about this particular case.  But it reverses, so at least one trial judge could use a little edification.

Now they all can learn.

Thursday, March 25, 2021

People v. Moine (Cal. Ct. App. - March 24, 2021)

If the Court of Appeal is correct about what the statute says -- and it might well be -- then perhaps we've gone too far.

Marco Moine has some problems.  Here's what prompted his latest foray into the criminal justice system.  (I recite the facts at some length because they're potentially indicative of his risk of reoffending, which is one of the key issues.)

"The People charged Moine with three counts of assault (the assault counts) and two counts of making criminal threats (the criminal threat counts) for two separate incidents occurring in the offices of two different medical care providers.

The first incident involved a fist-fight that took place in the waiting room of an urgent care facility in Palos Verdes on April 20, 2017. On that day, while Moine was in the waiting room, he asked a staff member at the front desk to turn off the television. Another patient confronted Moine about his request, and they entered into a fist fight. They each landed blows upon the other. At trial, they each presented conflicting testimony about who initiated the confrontation and who was more aggressive.

The second incident took place nearly a year later in another medical provider’s waiting room. On March 12, 2018, Moine sought medical care at an urgent care clinic in Loma Linda, hoping to secure a refill of his medications. After Moine saw the physician’s assistant, an office manager escorted Moine from the treatment room and handed him his prescription. Moine became upset that a referral to a psychiatrist had not been approved, and he questioned the office manager about the medication he had been prescribed.

As Moine left the medical office with his mother, the office manager heard him say something “along the lines of, ‘This is America. I can go home and get my gun and come back and shoot all of you.’ ” The officer manager explained that over the course of a five-minute period, Moine made several other statements, which she described as “ranting,” and he was cursing, pacing, and “talking with his hands up in the air” as he spoke.

A nurse who was at the front desk testified that Moine was visibly upset. She did not “remember exactly” the words Moine spoke, but recalled him saying “If I didn’t get—they are lucky— they are lucky I don’t have my gun with me, otherwise I would kill everybody here.” He continued, “I am going to come in and kill everybody here.” On cross examination, she agreed he also used the phrase, “If I had a gun.”"

Those are the latest things.  Mr. Moine also has a fair amount of prior criminal history.  He's currently being charged with a "misdemeanor charge of resisting an officer in violation of section 148, resulting from his refusal to comply with officers’ commands in responding to a report of a possible overdose. He also faced a misdemeanor charge of petty theft in violation of sections 484 and 490.2, for stealing medical supplies."  Plus "the probation officer’s report indicates Moine had four prior misdemeanor convictions, three for drug or alcohol related offenses and one for hit and run."

It's fairly clear that Mr. Moine has a mental health problem.  Probably also a drug problem too; perhaps related.  The point is:  As a result, there's a fair degree of spontaneous violence, over a nontrival period of time.

The trial court seems to understand that, so doesn't sentence Mr. Moine to prison; rather, the "court suspended imposition of sentence and placed Moine on probation for five years."  Which seems to me like a reasonable resolution.

Moine appeals, saying that he should have been granted mental health diversion.  Under the statute, you get diversion if (essentially) your mental health problems were a significant factor in the commission of your crimes -- which is definitely the case with Mr. Moine -- and your release wouldn't pose an unreasonable risk to public safety.  It's that last factor that's principally relevant here.  Since he's got a doctor who says his mental condition might respond to treatment, if Mr. Moine isn't a risk to the public, then the charges against him get postponed for a year or two while he gets treated, then if everything goes okay during that period, the charges are dismissed.

So the question is whether releasing Mr. Moine for those couple of years would create an unreasonable risk of safety to the public.

Whatcha think?

He did, after all, say things like "This is America. I can go home and get my gun and come back and shoot all of you" and "I am going to come in and kill everybody here."  Plus there's the obvious mental health and violence control issues.  I bet that if he was released, and then ended up as a mass shooter, a ton of people would say:  "It was so obvious!  How could anyone not see it?!"

Of course, maybe Mr. Moine is ATNA (all talk, no action).  (I learned this acronym yesterday in a different -- albeit also disturbing -- context.)  At least as guns go.  After all, he hasn't yet shot anything up.  Yet.

Even if that's so, however, he's clearly got impulse control and violence problems.  Witness the assault charge and all the threats.  There's fairly clearly a real risk that if he's released, he's going to end up punching someone.  Or worse.

Is that sufficient under the statute to disqualify him from mental health diversion?  Does it mean that releasing him would create an unreasonable risk to public safety?

The Court of Appeal says:  "No.  Not even close."

Through a convoluted series of cross-references -- including reference to "clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667" -- the Court of Appeal says that you're only an unreasonable risk to public safety under the statute if you're going to engage in so-called "super-strike" offenses.  What are those?  Things like "murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment."  Unless you're going to commit one of those (or some molestation offenses), you're all good.  Mental health diversion for you.

Which strikes me as a fairly seriously narrow category of crimes.  Let's say, for example, a guy with mental health issues commits a plethora of serious offenses -- e.g., whacking a ton of people with a baseball bat -- and we're convinced that if he's released, he's going to do the same thing again, this time to a bunch of little kids.  He says:  "You gotta release me anyway.  Yes, I'm a clear danger to society if released, but since I'm not shooting a police officer with a machine gun or anything like that, tough for you, since what I'm likely to do isn't a death penalty or life sentence offense and hence you're required to take that risk.  No discretion."  Is he right?

Apparently so.  Sure, you can potentially try to fudge at the margins, and say "Well, you gotta be able to find a doctor who says you'll respond to treatment," but realistically, how hard is that?  The Court of Appeal says its an abuse of discretion to find dangerousness short of these incredibly serious crimes.  I get it. It looks like the statute might well say that.

But, if so, wow.  That perhaps seems to take mental health diversion perhaps a bit too far.  At least if we say that categorically no other types of societal dangerousness can be sufficient.  Which is definitely what the Court of Appeal holds here.  Holding, on that basis, that releasing Mr. Moine doesn't constitute an unreasonable risk to public safety.  At least as the statute currently defines it.

The Court of Appeal says something else related to this issue that is both worth mentioning as well as simultaneously (1) seemingly true, but (2) might have unanticipated consequences.  About halfway through the opinion, the Court of Appeal says:  "Our conclusion is further supported by the trial court’s decision to release Moine into the community on bond for a period of over two years, which indicates the court necessarily found that Moine was not likely to cause “great bodily harm to others” if released. (Cal. Const., art. I. § 12, subds. (b) & (c).) It is logically inconsistent to deny mental health diversion on the ground that Moine was likely to commit a super-strike offense, while simultaneously finding he was not likely to inflict great bodily injury on persons in the community."

That's a pretty good point.  It's hard to argue that releasing someone would create an unreasonable risk to the public when, earlier in the case, you previously decided to let him out.  If it was okay to release him before trial, why isn't it similarly okay to release him so he can get treated?

I think there's at least a possible answer to this question, depending on the case, because pretrial release on bail happens before someone's found guilty, whereas sometimes mental health diversion is requested after conviction but before sentencing.  It wouldn't necessarily be absurd to say "Well, at this point, we presume that you're innocent, so I'm going to grant you bail," yet later say "Now that the jury has found that you did in fact commit the assault at issue, and the presumption no longer exists, the offense that you committed establishes that you'd probably be a danger if released."

But if everyone relevant -- both bail and mental health diversion -- are requested pretrial, then, yeah, the Court of Appeal has a pretty good point.

The only downside of this is how trial courts might perhaps respond to this reality.  If you say that you can't find future dangerousness and hence stop a guy from (eventually) getting the charges against him dismissed via mental health diversion if you've previously granted him bail, then I could readily see trial courts exercising their discretion . . . to not grant bail.  Maybe they're fine to let the guy bail out but are super unwilling (as here) to let the charges be entirely dismissed.  I could easily see a trial court saying (subconsciously or sub rosa) "Maybe in the old days I'd grant this guy bail, but no way am I doing so since the Court of Appeal has now said that when I do so I can't find the guy too dangerous for mental health diversion and dismissal.  Rot in jail, my friend."

Sometimes trying to do something good might practically have the opposite effect given unintended consequences.  Maybe including here.

Monday, March 22, 2021

Academy of Country Music v. Continental Cas. Co. (9th Cir. - March 22, 2021)

I'm glad that this case came out the way it did.  Moreover, Judge Callahan's opinion contains much to recommend it.  She does a very good job of both explaining prior precedent -- albeit stretching a tiny bit at times to make it ostensibly consistent -- as well as sorting through some tough jurisdictional questions that arise when a party attempts to appeal an order remanding a removed case back to state court.  As someone who teaches civil procedure, I can attest that this is no easy task, for students and lawyers alike.

I'll nonetheless mention that even though I like how the opinion comes out (since I agree with Judge Callahan that the district court improperly remanded the case), it takes a particularly narrow view of what the district court actually did to get there.  The law is that if a district judge remands a case pursuant to Section 1447(c), a party can't appeal; by contrast, if the district judge remands the case for other reasons (e.g., those not set forth in 1447(c)), a party can appeal.  The Supreme Court has held that 1447(c) does not require a defendant to prove jurisdiction in its removal papers (i.e., include evidence), but that those papers nonetheless require a "plausible allegation" of jurisdiction therein to avoid dismissal.

Judge Callahan's opinion holds that Judge Klausner erred by requiring proof of jurisdiction, and since he did so, his remand wasn't based on 1447(c) and was thus subject to appeal.  Doctrinally, that move may perhaps work, and permit the Ninth Circuit to hear the appeal and reverse.

But I'm not convinced it's what Judge Klausner actually did.  The Ninth Circuit says:  "The district court erred as a matter of law in requiring that the notice of removal “prove” subject matter jurisdiction instead of containing plausible allegations of the jurisdictional elements."  Yet here's how the district court's order actually reads:  "The Court is unable to find a plausible allegation that the amount in controversy has been met."  The subsequent paragraphs of the order then attempt to explain why the district court concluded that the allegations of jurisdiction (e.g., that the case was worth over $75,000) were implausible.

If the district court was simply wrong about the allegations being implausible, there's no ability to appeal, so the Ninth Circuit can't correct the error.  Hence the Ninth Circuit's holding that the district court applied the wrong standard by requiring "proof" of jurisdiction "instead of containing plausible allegations of the jurisdictional elements."  But given that the district court expressly held that there was no "plausible allegation" of the amount in controversy, I'm just not at all confident that the Ninth Circuit's right; he was at least ostensibly applying the right standard -- he was just wrong to hold that the allegations were implausible.

Admittedly, the problem here arises in part because of the whole "plausibility" standard in the first place.  There's a fine line between being "wrong" because you think that certain allegations aren't plausible (which means there's no appeal) versus being "wrong" because you think that the party has to "prove" jurisdiction as opposed to merely plausibly allege it (which would mean we do allow an appeal).  The Ninth Circuit was basically saying that the district court required too much at the pleading stage.  Sure.  But really what the district court was doing was "requiring too much" not because he thought there needed to be "evidence" of jurisdiction in the moving papers, but rather because he (wrongly) thought that the allegations therein weren't sufficiently "plausible" to establish jurisdiction.  So he applied the right standard, just incorrectly, because he was way too strict.  If you that, there's no appellate jurisdiction -- hence why the Ninth Circuit said that he applied the wrong standard, even though his order expressly articulated the right standard and said he was applying it.

To reiterate:  It's hard to tell the difference between being "wrong" on the merits of a pleading versus applying the wrong pleading standard, particularly when the district court at least sets forth the right standard (but then arguably doesn't apply it correctly).  That's an underlying problem with the plausibility standard itself, particularly when rigorously applied.  A problem that exponentially increases when, as here, you're applying that law with respect to removal, since we sometimes remand cases sua sponte, with the additional complexity of not allowing an appeal.

But when the district court expressly says that there's no plausible allegation of jurisdiction and that that's the standard, and then goes on to explain why (in its view) there's not one here, it's hard to argue -- as the Ninth Circuit does -- that the district court wrongly thought that the removal papers required more than just a plausible allegation of jurisdiction.  It's just hard to read the record that way.

Even if doing so results, as here, in getting the case "right" and correcting the district court's error.