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 "bhplasticsurgeon.com" 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."

Really?

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.

Thursday, March 18, 2021

City of LA v. Superior Court (Cal. Ct. App. - March 18, 2021)

We live in America.  California, even.  It's absurd that we have lawsuits about contracting typhus here.

This is not the Middle Ages.  The United States should not see cases of typhus here.  Much less in downtown Los Angeles.

Yet here we are.

Tuesday, March 16, 2021

People v. Hoffman (Cal. Ct. App. - March 16, 2021)

A version of "Name That Tune" with respect to opinions from the California Court of Appeal would be to attempt to accurately and summarize the thing in as few sentences as possible.

For this opinion from today, I can Name That Tune in a single sentence:

The evidence isn't insufficient as a matter of law to keep someone detained as an SVP when he's a repeat child molester who forthrightly admits that he can't guarantee that he won't molest another child upon his release, even though most -- but not all -- 74-year olds don't have the energy and desire to keep molesting kids.

Justice Yegan also keeps his opinion short -- around three double-spaced pages (including a reference to Steinbeck) -- but that single sentence pretty much says it all.



Monday, March 15, 2021

Aguilar-Osorio v. Garland (9th Cir. - March 15, 2021)

The majority says it's a weird case because the immigration judge (1) refused to admit a document -- a country report -- as part of the record, but then (2) relied on that very same (excluded) document to reach its decision.  And then, on review, the BIA didn't address this underlying problem.  So it remands so the BIA can decide what it should do with respect to this apparent dilemma.  It thinks that's a cautious and reasonable solution to the problem, saying:  "The question of how to treat this unusual situation is an issue that the BIA has not addressed and therefore we cannot decide in the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002) (citations omitted) (“[T]he proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”). We therefore remand the CAT claim to the BIA for reconsideration in light of the fact that the IJ took judicial notice of, and relied upon, the Country Report."

By contrast, Judge Van Dyke takes the exact opposite view.

Although he's been on the court only for only around a year, Judge Van Dyke isn't much worried about making friends with his dissents.  Or at least not with Judges Fletcher and Schroeder.  It looks to me like the majority opinion was designed to be an unpublished memorandum disposition, and is per curiam -- but that Judge Van Dyke insisted that it (and his dissent) be published.  A dissent that begins like this, with the underlying footnote contained in the parenthetical below:

The majority’s lawless remand of this case to the BIA flouts binding precedent stating that the BIA is not required to consider—nor are we permitted “to take judicial notice of”—a country report that is “not part of the administrative record or not previously submitted to the Board.” Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc). (Footnote: I recognize that “lawless” is a strong word, and I don’t use it lightly. But it is sadly appropriate here. The majority not only fails to cite any relevant precedent for its remand to the BIA—thus evincing that its remand is, precisely, “not regulated by or based on law,” Lawless, Merriam-Webster Dictionary, https://www.merriam-webster.com/ dictionary/lawless (last visited Feb. 25, 2021)—it even has the cheek to cite Fisher, which actually forecloses its remand rationale, in the part of its opinion ordering the remand. “Keep your enemies close …,” as they say.) But notwithstanding contrary on-point, en banc authority, I guess nobody can make intransigent judges unknow what they already know they know. . . ."

Describing your colleagues as "lawless" and "intransigent" -- and using the word "enemies" -- is surely a strong opening paragraph.  Particularly for a proposed memorandum disposition in an immigration case that sends the thing back for what will almost certainly be the same result on remand.

But Judge Van Dyke has a definitive take.  And isn't shy about making sure you know what it is.

P.S. - It's a big Judge Van Dyke day today.  The Ninth Circuit published opinions in three cases, and Judge Van Dyke writes opinions in all three of 'em:  he authors two dissents -- this one, and one in a sex discrimination case -- and the panel opinion in the other (an immigration case).  As you might suspect, Judge Van Dyke finds against the plaintiff/petitioner in each of these opinions.

Thursday, March 11, 2021

Akella v. Regents of UC (Cal. Ct. App. - March 11, 2021)

Sometimes you get into litigation through no substantial fault of your own.  Someone hits you with a car (or you hit them).  You get sexually harassed or laid off at work.  Things like that.  You end up in court and you have to deal with the hand that you got dealt.

Whereas sometimes, like here, you're your own worst enemy.

Ramakrishna Akella is a professor at UC Santa Cruz.  It's a relatively cushy job -- as entirely fits that typically laid-back institution (and occupation in general).  The normal teaching load for professors is ostensibly five "classes" a year.  But, in reality, it's only three:  you've got to teach three "podium" (i.e., actual) classes, and the other two classes entail "advising, mentoring, research supervision, and training activities associated with our graduate and undergraduate programs."  So basically during research or any other professor-like things (e.g., "academic mentoring and advising of graduate and undergraduate students, teaching assistant training and mentoring, curriculum maintenance and revision, and advertising and outreach for the department").

Now, normally, basically anything counts for those two additional "classes" -- or at least anything that your department chair decides counts.  But Professor Akella's department chair basically thinks that he's deadwood, so decides that Akella needs to teach four actual classes instead of three.  That'll make up for Akella's alleged failure to have any "undergraduate advising or curricular leadership roles" and purported "'catastrophic' record on graduate advising and graduate curricular leadership."

One can adopt such a strategy for good reasons or for bad ones.  Sometimes, a faculty member is indeed just going through the motions on research etc. and hence perhaps legitimately assigned other work in order to even out the various professorial burdens.  (Mind you, sometimes faculty members are similarly going through the motions on their teaching duties, and that rarely gets the faculty member in trouble.  Sadly.)  By contrast, sometimes, it's not that the faculty member isn't doing anything extra, but is instead that that the department chair (or Dean) doesn't like or appreciate the qualities of those extras -- or simply doesn't personally like the underlying faculty member -- and so assigns extra workload in an effort to harass the person and/or get them to quit (or leave).  Ditto for assigning tough courses, inconvenient dates and times for classes, etc.

For whatever reason, Professor Akella's not having it.  He's assigned four classes, but says he's only going to teach three.  Period.  (Actually, he "buys out" a class, so only has to teach three, but says he's only going to teach the two.)  His theory being that the department chair doesn't have the authority to add an extra podium class to a professor's workload.

So when 80 students show up for the class the department chair scheduled, Prof. Akella doesn't show up, and the University scrambles to get a replacement.  In response, the University imposes discipline for Professor Akella's failure to appear; he gets a 15% reduction in pay for the next year, plus a letter of censure in his file.  Which, in the scheme of things, isn't all that serious of a penalty, IMHO.

But Professor Akella files a petition for mandate, claiming that the extra class wasn't allowed.  And the trial court agrees.

The Court of Appeal reverses.  The opinion describes in exhaustive detail the underlying policies, and decides that, yeah, the department chairs can indeed add an extra "real" class to the teaching load if the professor isn't doing sufficient other stuff.

Okay.  Fair enough.  The issue is a clearly a relatively close one, if only as evidenced by the fact that the trial and appellate courts disagreed.  It's a fair amount of litigation for a fight that's merely about whether a professor has to teach an extra class once a year, but okay, let's put the whole thing down to principle and the need to get a final ruling.  Maybe that justifies all the costs and attorney's fees that everyone's spending on the thing.

So after reading the opinion, I wanted to find out how Professor Akella is doing these days.  So I consulted Mr. Google.

At which point I discover that although the opinion (understandably) doesn't mention it, Prof. Akella ultimately did even worse for himself.  His department at the University was subsequently abolished, and while other departments absorbed pretty much all the professors, none of 'em wanted Akella.  So he got assigned to a Dean for his course assignments, and Prof. Akella insisted -- sort of similar to what he said in today's opinion -- that if there's no department, there's no department chair to assign him to teach any classes, so he doesn't have to teach any.

At which point the University revoked his tenure and fired him.  One of only two professors at UCSC to have ever had their tenure revoked.

A little backstory on professorial relations.

Wednesday, March 10, 2021

Karton v. Ari Design & Construction (Cal. Ct. App. - March 9, 2021)

There's nothing published from the California appellate courts or the Ninth Circuit today, so I thought I'd mention this opinion from yesterday, if only briefly.

It's really just a vehicle through which Justice Wiley can make a point.  A point that's surely valid, but one that Justice Wiley is particularly keen to make.  So does.  At some length.

The appeal comes out exactly how every objective observer in the universe would expect.  David Karton hires a contractor to do some extensive construction work on his home -- over $150,000 worth.  After about five months of daily work, the parties start fighting.  Karton's paid 'em about $100,000 at that point, and everyone admits that the contractor hadn't yet done $100,000 worth of work at the point at which it was fired.  The contractor figures that Karton's owed around $13,000, but Karton thinks he's owed more like $35,000.  AS the Court of Appeal notes:  "No witness impugned the quality of [the contractor's] work."  It's just a fight about how much was work was finished at the time the contract was terminated.

So Karton sues.

At trial, Karton ends up being right, so the contractor's got to pay back the $35,000 owed.  But Karton also proves at trial that the contractor wasn't properly licensed.  And we're super harsh on that.  As Justice Wiley notes:  "Section 7031, subdivision (b), of the Business and Professions Code, [] entitles those using an unlicensed contractor to all compensation they paid the unlicensed contractor, even if they knew the contractor was unlicensed. This statute requires an unlicensed contractor to return all compensation it received, without reductions or offsets for the value of materials or services it provided. This statute can create a windfall for those hiring an unlicensed contractor that has done quality work. Courts may not resort to equitable considerations when applying this statute, however, for the law aims to create a harsh penalty to induce contractors to maintain proper licensure."

So Karton does indeed receive his windfall; he gets the entire amount he paid the contractor back (roughly $100,000), plus he gets another bonus -- an additional "$10,000 penalty under Code of Civil Procedure section 1029.8. [S]ection 1029.8 provides for treble damages and attorney fees against “[a]ny unlicensed person” whose work injures another person. This statute caps the permissible treble damages award at $10,000. (Id., subds. (a) & (c).) This treble damage provision, albeit capped, is an additional noncompensatory damage provision that created a further windfall for the Kartons."

So Karton gets a little over $100,000, plus he gets to retain all the quality work the contractor did.  He also gets to ask for his attorney's fees, which (of course) he does.  He demands over a quarter million dollars of fees.  But the trial court says, essentially:  "No way.  This was a simple case.  You massively overlitigated the thing.  I'm giving you 200 hours at $450/hour, for a total of $90,000."  (Actual quotes from the trial judge:  "The court observed the Kartons had gone 'so far beyond what was necessary on this matter.' The court concluded, 'I cannot say that anything like $270,000 requested in this case is reasonable.' The $270,000 fee request was 'excessive by a lot.'” )

So Karton files an appeal, claiming that the trial court was required to give him more money.

That appeal comes out exactly how you'd expect.  It's an abuse of discretion standard, and there's absolutely no such abuse here.  Justice Wiley lists a plethora of reasons why the trial court rightly could (and did) discount the fee award to $90,000.  All of which are totally right.  So Karton loses.  (Though he wins on an ancillary point about the contractor's surety also being liable for the reduced fee award.)

It's an otherwise routine case about a party who massively overlitigated the case below and so gets a reduced fee award.  Nothing really special or otherwise remarkable about it.  They're a dime a dozen.

But one of the reasons that trial court gave for reducing the award was its observation that the over-litigation was, in part, a byproduct of Mr. Karton's personal and excessive involvement in the case.  Because, you see, Mr. Karton is an attorney in Beverly Hills.  And he decided to litigate against his former contractor . . . aggressively.  As Justice Wiley explains in his opinion:

"The trial court commented on the Kartons’ lack of civility in their briefing. “The briefing filed by [the Kartons’] counsel was replete with attacks on defense counsel such as that defense counsel filed ‘knowingly false claims of witness tampering,’ ‘her comments were frivolous,’ something was ‘typical of the improper tactics employed by defendants and their counsel’. [¶] It was really offensive to me, the attacks made in this case.”  (Plus, during oral argument, "The court asked Karton, “Can you not interrupt me. I would appreciate your letting me finish my sentence.”  Never a good sign.)

That's an issue that Justice Wiley wants to talk about.  And does so at length.  Remarking -- again, rightly -- the a lack of civility, and resulting overlitigation, can indeed be the basis for reducing a fee award.

Now, to me, the thing that justifies the reduction is the overlitigation, not the incivility.  But, sure, the two often go hand in hand, so it's worth making that point.

The lesson being:  Don't be a jerk.  Or at least an obvious jerk.  Or at least an obvious jerk in a case in which you've already received a huge windfall.  Because pigs get fat, whereas hogs get slaughtered -- and uncivil hogs even more so.

Tuesday, March 09, 2021

People v. Harawa (Cal. Ct. App. - March 9, 2021)

You own a liquor store.  There's another liquor store across the street.  Your competitor lowers the prices it charges for beer.  What should you do?

The correct answer, according to the defendant here, is:

Hire someone to burn down your competitor.

It's a story of repeated incompetence.  The would-be arsonists try to burn the place down four different times, failing (miserably) each time.

Defendant gets convicted and sentenced to nearly a dozen years in prison.  The Court of Appeal affirms.

Next time, maybe lower your own prices.  Free market > arson.

Thursday, March 04, 2021

Anderson v. Edward Jones & Co. (9th Cir. - March 4, 2021)

Some background first.

There are two types of investors.  One type are people who own stocks and hold 'em forever, and trade very little.  My mother's like this.  (So am I, mostly.)

Then there are people who trade more frequently; from the "every month or so" to daytraders and the like.

There are also two types of fee structures for brokerage accounts.  One type of account -- the "usual" (in my experience) -- just charges commissions every time you trade.  The other type of account charges a set amount -- for example, 1% of the value of your account -- every year.

The "commission" arrangement is clearly better for the buy-and-hold/rarely trade crowd.  Whereas the alternative might be better for the frequent trader.

But the brokerage house itself obviously has a different interest.  They'd love to charge mom-and-pop, buy-and-hold investors the annual one percent (or more) fee structure if they could.

Recognizing this conflict of interest, FINRA has a rule:  “Broker-dealers must ensure that fee-based accounts are only recommended to those clients for whom they are suitable; as such accounts tend to be more expensive for clients who engage in little to no trading activity.”

With that backdrop, here's the lawsuit.

Plaintiff files a putative class action that says that Edward D. Jones & Co. manipulates mom-and-pop investors into switching to "annual fee" accounts even though such a structure is clearly unsuitable.  My guess is that Plaintiff's correct that, yep, that occurs.  The trial court dismisses the lawsuit with prejudice, holding that the Securities Litigation Uniform Standards Act -- SLUSA -- preempts the state law claims.  SLUSA bars state law fiduciary duty claims if those claims are “in connection with the purchase or sale of a covered security.”  The district court held they were.

The Ninth Circuit reverses.

I won't claim to be the world's greatest expert on SLUSA.  But I am glad the case comes out this way.  If Edward Jones in fact did what they're alleged to have done, I hope they get spanked.

Wednesday, March 03, 2021

People v. Cummings (Cal. Ct. App. - March 3, 2021)

When one looks at published opinions from afar -- i.e., without access to the whole record -- sometimes you're at a disadvantage.  A perfect example is from this opinion today.

One of the questions (at the end) is whether the defendant was properly ordered to pay the costs of her appointed counsel.  The Court of Appeal holds that the issue was forfeited because counsel made a tactical decision not to object to these costs.  But the panel also reads the record to only impose $1525 of such costs, even though the written judgment was for over $15,000 -- which, it says, was probably why defense counsel decided not to object.  So it corrects the judgment.

But I can't help but wonder if that's actually what went down below.

There's no probation report, but the minute order clearly says that the defendant has to pay costs of $15,025.  Moreover, as the Court of Appeal notes, "at the end of the specific conditions of probation, the following handwritten notation appears: “attys fees $15,025.00 thru DRR.”  The Court of Appeal says (correctly) that "[t]he record does not indicate where the sum of $15,025 came from," but presumably it came from the clerk or the judge, right?

So it seems like the lower court wanted to impose $15,000+.

But here's the part of the transcript that the Court of Appeal holds requires correction of the cost award to around $1500:

"As part of the conditions of probation the court stated: 'I will order you to pay the cost of your attorney services which is pretrial disposition it says limited investigation motions let’s make this $1525.'"

Okay.  That might be right.  The Court of Appeal says:  "It may very well be that defendant did not object because the trial court ordered payment of $1525 instead of $15,025, an apparent discount. Indeed, we read the record, such as it is, and the court’s comment – “let’s make this $1525” -- as indicating the court intended to reduce the costs to 10 percent of the stated amount."

Put to one side that it's not actually ten percent:  that'd be $1502.50, not $1525.  (A court that wanted to make an award of ten percent would probably just round the $15,025 principal it to an even $1500.)

But let's assume that (1) the trial court made something like a math error, and (2) the Court of Appeal was just speaking loosely when it said "ten percent."  There's tons even just in the Court of Appeal's own opinion to suspect that the fault here is the court reporter's -- that s/he left off a "0" when s/he transcribed the oral pronouncement (of $15,025) as "$1525".

Let's just take, for example, the two sentences that the court reporter transcribed occurring immediately after the $1525/$15,025 number.  Those get transcribed (in the Court of Appeal's opinion) as:  "You can . . . talk to the Department of Revenue Recovery about a payment schedule for that. If it turns out that you are satisfied [sic] with that schedule, you have the right to return here.”  The Court of Appeal adds that "[sic]" -- again, correctly -- because I'm confident the trial judge actually said "unsatisfied."  Add to that to an earlier transcription that read (as described in today's opinion):  "The People also look to Mitchell v[.] California Department of Corrections and Rehabilitation at 2011, US District Lexus 112916."  That's a minor error, to be sure, but, yeah, I bet the trial judge didn't actually say "Lexus."  (Let's hope, anyway.)

The point is simply that it's quite conceivable that the oral pronouncement was actually $15,025 but that the court reporter wrote it down wrong -- but that this number was written down correctly both in the handwritten notes as well as in the judgment.  As opposed to the (admittedly possible) "ten percent discount" hypothesized by the Court of Appeal.

So maybe Justice Murray gets this right, but maybe he gets it wrong.  Depends on how you read the record -- and how much you trust the stenographer/record.

Tuesday, March 02, 2021

Holistic Supplements v. Stark (Cal. Ct. App. - March 2, 2021)

On one side of this litigation you've got Brad Barnes.  Mr. Barnes opens a marijuana shop in 2005.  The business is run by an LLC, but for "legal reasons" Barnes doesn't want his name on the business.  In part because he "also owned a strip club, a bar, and an adult entertainment store in the same shopping center" as the marijuana business and didn't want anything illegal about the pot shop potentially tainting his other (more wholesome) enterprises.

So he gets David Gold to be the only one on the LLC, with Gold getting 10% of the profits in return for use of his name (and Barnes running the place and getting the remainder).

But then Gold gets tired of working with Barnes, plus the shop was raided by police in 2011 and Gold becomes worried about maybe getting arrested.  As a result, in 2014, Gold transfers the "name" on the LLC (the one shielding Barnes) to Christopher Stark, the other side of the present litigation.  Stark is a friend of Barnes and works at the strip club.  The arrangement is the same:  Stark's name is the only one on the business, and in return, he gets 10%, but Barnes runs the show and gets the 90%.

But in 2015, Stark gets tired of working with Barnes too.  So, allegedly, Stark tells Barnes' ex-wife, Jamie Kersey, that he too wants out.  So in 2015, there's a meeting between Barnes and Stark (on that, everyone agrees), and present at the meeting is the pot shop's corporate attorney, Robert Manuwal.  According to Barnes, Kersey and the attorney, at the meeting, the "name" transferred yet again:  Stark signs papers that transfers the LLC to Kersey.  There's a document with his signature on it.

But Stark testifies he was just signing checks and whatnot; that he didn't actually transfer the business, and that his signature was forged.

Which is against the weight of the testimony, it seems to me.  Plus conflicts with the fairly compelling facts that "[a]fter that night, Stark had no further involvement in the dispensary operations at the Canoga Park location. He never returned to pick up any assets, cash, marijuana product, or equipment. The day after the alleged transfer, Kersey met with dispensary employees to tell them about the change in ownership. Dispensary operations continued as normal."

But Stark had other plans. "Unbeknownst to Kersey and Barnes, Stark did not relinquish his ownership of the LLC. On September 2, 2015, he filed “Articles of Incorporation With Statement of Conversion” with the Secretary of State. The form listed Stark as the managing member of the LLC and purported to convert the LLC to Holistic Supplements, Inc., a corporation with Stark as the sole shareholder. The document listed Stark’s home address as the business address for the corporation."

Hence the resulting fight between Barnes (via his ex-wife, Kersey) and Stark about who really owns the business.

Stark wins below.  The Court of Appeal reverses.  In a battle between the strip club owner with various people fronting for him versus the strip club employee frontman for ownership of a marijuana shop that no one particularly wanted until after marijuana became legal.

We'll see who wins on remand for control of the Canoga Park marijuana business.

Monday, March 01, 2021

In re Anderson (9th Cir. - March 1, 2021)

At some level, I appreciate it when the Ninth Circuit adopts -- as here -- the opinion below as its own precedent.  That shows a lot of respect for the lower court, which is nice.  Plus, as an added bonus, it couldn't be easier.  Gets an opinion off your plate with an absolute minimum of work.

But it's also always seemed to me simultaneously disrespectful to the litigants, especially the losing party.  Appellant spent a fair piece of money hiring a lawyer to file and prosecute an appeal, and the attorney in turn devoted substantial efforts to arguing that the lower court got it wrong.  For example, here, appellant writes a 30-page opening brief and a 15-page reply.  Those briefs directly challenge the reasoning of the lower court and explain why it's (allegedly) wrong.

It just seems somewhat insulting to not respond to any of these arguments at all in the opinion and simply incorporate the lower court opinion as your own.  I get that there's no oobligation to respond.  But for the losing side, I suspect you feel like you weren't really even heard.  Similar to an oral argument at which the judges don't ask any questions at all and passively sit there and listen, and then rule against you without any explanation at all.  Just seems wrong to me at some level.

Yes, I know that memorandum dispositions are like that sometimes as well; two- or three-sentence dispositions that don't actually explain anything at all, and simply state conclusions.  But I have similar reactions to them as well.  Sure, the Ninth Circuit's workload is substantial.  But you probably wrote a bench memorandum anyway that explains things, including but not limited to the arguments that appellant makes and why they're wrong.  Why not just cut-and-paste what's there?  Doesn't take much time, and gives the litigants at least the illusion that you put in some effort.

Personal style, I know.  I clerked for a judge who occasionally just incorporated the lower court's opinion.  Didn't really like it then, and haven't really changed my feelings much over time.

Thursday, February 25, 2021

People v. Hardy (Cal. Ct. App. - Feb. 24, 2021)

Lots of big cities have "Shotspotter" systems.  It's basically an automated system that listens for gunshots and sends out a notification to police once it hears them.

The Court of Appeal holds that in this case, the trial court should have conducted a Kelly/Frye hearing to determine whether the Shotspotter technology was scientifically reliable.  And, to be sure, that certainly wouldn't have hurt.  (I also suspect that the trial court would have easily found it to satisfy the relevant standards.)

But I wonder whether the failure to conduct that inquiry here was really all that prejudicial.  This was a case in which the police officers were already staking out the relevant location when the shots were fired and an officer testified that he personally saw the shooter fire the weapon.  That testimony -- plus the spent shell casings -- makes it seem pretty darn obvious that there was indeed a shooting.

Justice Stewart is right when she says that the evidence wasn't entirely clear about whether there were six or seven shots fired, which in turn reflects whether the gun was a revolver (which only holds six rounds) or a semiautomatic (which expels casings like the ones recovered at the scene).  And, yes, on that point, the evidence about Shotspotter was indeed fairly important, because that was by far the clearest evidence that there were seven shots fired, not six.

But it seemed to me that what was relevant there was simply the recording of the shooting that was stored in the system and played for the jury.  It was nothing more than a fancy tape recording; as to which, last I checked, there isn't really much of a Kelly/Frye dispute.  The prosecution didn't use the Shotspotter data to "prove" the sounds were gunfire.  It just essentially used the tape to confirm that, yep, those sound a lot like shots, and there were seven of them.

Could the defense have claimed that the recording was from another data set or altered or what have you?  I guess.  But it didn't, and there's absolutely no reason to believe that it was.  Given that fact, I'm not at all sure that we need to go down the whole Kelly/Frye path just to establish that, yes, we have the technology to record things, and here's the recording of the sounds recorded by the system on the night of the alleged shooting.  Any more than we need a Kelly/Frye hearing to admit surveillance videos, photographs, or any of the other recording systems that we daily submit to jurors for their review.

It'd be one thing if the defense said "These are just car backfires" and the prosecution said "No they're not, the Shotspotter system screens out that stuff."  But nothing at all like that went down here.  Given the facts here, I'm inclined to think that reversing the conviction here might go a bit overboard.  Since what really mattered was the officer's testimony -- and, yes, the recording helped, but it was simply the recording, not any "authentication" by the Shotspotter technology, that seems to me made the difference here.


Tuesday, February 23, 2021

People v. Barrios (Cal. Ct. App. - Feb. 23, 2021)

The defendant in this case had a fairly decent criminal plan.  Not novel or anything, but it works.  Take out a gun, approach a guy in a car, take the money in his wallet, tell him to drive you to an ATM and withdraw cash, and there you go:  "easy" money.

There was a slight twist here, though.  It was 10:30 p.m. when the defendant met up with the victim, and the victim subsequently withdrew his daily limit of $500 from the ATM.  But defendant thought that since it was nearly midnight, they could just wait a little bit and it'd then be "the next day" and the victim could withdraw another $500.  So they parked on a side street and waited for a little bit until midnight.

Which might have been a workable plan.  But defendant added a slight twist that made the whole thing fall apart.

While they were waiting for midnight, defendant decided to take a nap.

Yeah.  Generally not a good idea.  Particularly during a kidnapping.

The victim texted his friends, the police set up a roadblock, defendant was captured, and was sentenced to a long time in prison.

Maybe rest up before the kidnapping next time.  Or just take the original $500 and wallet.  Either way works better.

Or maybe not even commit the crime at all.

U.S. v. Olson (9th Cir. - Feb. 22, 2021)

Opinions like this are somewhat rare nowadays.  Virtually a relic of a bygone era.  Though I'm glad to see 'em make at least the occasional comeback.

You would see in the old days various ways in which courts would make doctrinal shifts, both large and small.  Large ones like Marbury v. Madison and incorporation via the Fourteenth Amendment.  Smaller ones like Shelley v. Kraemer, the right to appointed counsel and Miranda.  There was a well-established legal regime but it was found wanting in various degrees, so the courts changed it.  In ways that were not doctrinally easy to establish, but which nonetheless worked -- and that (typically) obtained subsequent popular and legal approval.

So too here, I think.  Or at least it's a step in the right direction.

The question is when you get a right to counsel -- an attorney "appointed for you if you cannot afford one" (to use the typical television Miranda warnings).  The longstanding rule that's typically applied is that you get an attorney after you're criminally charged.  After all, that's typically when you need one, so it makes sense.

But there are problems at the margin, including but not limited to those underlying the present case.  Here, the United States informs the defendant that he's the "target" of a federal grand jury investigation and that they're definitely going to indict him, but also lets him know they're potentially willing to make a deal  -- and invites him to come on in and negotiate.

The defendant doesn't have his own lawyer, and also can't afford one.  But he's no idiot.  He knows he definitely needs an attorney if he's going to try to negotiate a plea deal.  So he asks the court to appoint one for him.

The question presented is this:  Does the defendant have a right to an attorney?  Or can the government legitimately say:  "Look, we're willing to discuss a plea deal, but if you don't have a lawyer and can't afford one, tough; you're either going to have to do it yourself or get criminally charged.   Nobody is entitled to a court-appointed lawyer until we actually decide to file charges, so if we hold off, no lawyer for you."

Hmmmm.

On the one hand, it seems fundamentally unfair to give rich people the superior ability to avoid an indictment and effectively negotiate a pre-charge plea deal while leaving poor people out in the cold.  But, hey, it's also a nice bright-line rule to say that you only get a lawyer after you're actually charged.  A bright-line rule that also tends to have a fair amount of historical doctrinal support.  Including but not limited to circuit precedent.

So what to do?

Judge Berzon writes a concurrence that essentially says "I think we're bound by circuit precedent on this issue, but in an appropriate case, I'd totally vote to take the matter en banc and hold that there's a pre-indictment right to counsel in cases similar to the present one.  It's just that this particular case does not qualify."  Chief Judge Thomas writes a concurrence that says:  "I actually don't think that circuit precedent forecloses a right to counsel in cases like this one, so we don't even need to take the issue en banc, but I do agree with you that the present case doesn't merit relief anyway."  And Judge Schroeder joins the per curiam opinion that says what everyone on the panel agrees:  that the defendant here, who did get a court-appointed attorney during plea negotiations -- but who then rejected the proposed pre-indictment plea deal and went to trial (and ultimately obtained a worse result therein) -- didn't establish any prejudice from the events at issue in his case.

So we all agree on what happens to the defendant here (Mr. Olson).  The larger issue regarding pre-indictment right to counsel remains undecided, but with a couple of judges making clear that they think that -- one way or another -- there should indeed be a right to counsel in settings like those here; e.g., where the government invites pre-indictment plea negotiations.  Judges Thomas and Berzon simply disagree on the means through which this result should be accomplished; i.e., through en banc review or otherwise.

Not only do I think that the concurrences make good points (and good law), but they also embody a fancy Marbury-like practical quality.  As you undoubtedly recall from law school, in that case, Chief Justice Marshall famously established judicial review while simultaneously holding that it could not provide Marbury with the relief he sought.  So there was no relief granted for the individual litigant at issue -- somewhat mitigating what might have been a political backlash to the underlying principle of judicial review -- but the court nonetheless established the broader doctrine for use in future cases.

So too here, albeit in a slightly different way.  Mr. Olson gets no relief.  But district courts are now told that there are at least two votes on the Ninth Circuit -- and likely plenty more -- for the right to counsel in certain pre-charge settings.  As well as the principled reasons supporting such a right.  Even the mere existence of those concurrences is likely to have an effect, notwithstanding the undeniable reality that neither of 'em constitutes controlling precedent.  District courts in the future are, I suspect, likely to be much more solicitous to requests for pre-indictment appointment of counsel in settings like these as a result of the two concurrences -- if only because no one wants to be reversed in some future case in the event a district court denies a request for counsel.  Similarly, since the defendant here gets no relief, it's extraordinarily unlikely that the government seeks (or that the Supreme Court would grant) certiorari over the present opinion, since, after all, the government won.

Yet it'll still have the practical effect of getting counsel to a variety of defendants in various pre-indictment settings.  Even though "precedent" won't compel it.

A neat little trick.

Sure, nothing stops a district court from saying "Well, I don't agree that there's such a right, so I'm not appointing any pre-charge attorneys; go ahead and reverse me if you can."  But the concurrences still advance the ball both intellectually and practically.

Which is cool.

Thursday, February 18, 2021

Brown v. LAUSD (Cal. Ct. App. - Feb. 18, 2021)

I certainly can't wax as poetic as Justice Wiley.  But I can perhaps summarize the points he makes in his concurrence fairly briefly:

(1) Everybody loves the Internet.  So while the majority is right that you can't dismiss the complaint here at the pleading stage, it's going to be a pain in the butt for everyone if people get to file suit in California claiming that they need accommodations at work because they allegedly get super sick when exposed to WiFi.

(2)  Experts are prostitutes.  They'll say anything.

(3)  Given (2), trial courts should think a ton about appointing a neutral expert.  That'll get the case settled, I bet.

There you have it.

Wednesday, February 17, 2021

Tabares v. City of Huntington Beach (9th Cir. - Feb. 17, 2021)

I'll offer two somewhat tangential comments about this opinion from the Ninth Circuit today.

First, personally, I always blanch a bit whenever I read things that (in my view) grossly exaggerate the alleged unprecedentedly awesome nature of American history and/or leaders.  Was the founding of an American democracy great?  Yep.  Did our elders create a novel nation?  Definitely.  Was it a material advancement for humankind in general?  Sure.

But let's not deify the thing.  The people who did it were human.  Flawed.  As we all are.  Our founders were often racist and sexist in totally unacceptable ways.  Indeed, let's not forget that several held other human beings in chattel slavery.  Not good.

These people -- and the nation they created -- were not perfect.  At all.  And, yeah, as for our founding, we beat the British, and that was a huge win.  But only in the same way North Vietnam subsequently beat us.  (Plus we had the huge advantage of the French on our side; no small help.)  In a fair one-on-one fight on neutral soil, we'd have been crushed.  (And, indeed, sort of got our butts kicked a quarter-century or so later by that selfsame enemy in the War of 1812.)

All of that's a frame of reference for my reaction to the second paragraph of today's opinion, which says:

"The Constitution is a “singular and solemn . . . experiment” created by one of the finest group of statesmen ever assembled. The Federalist No. 40 (James Madison). It was born of a hard-fought struggle that against all odds wrested a fledgling nation from oppression by the then-greatest empire on earth."

Okay, yeah, I get it.  I know that we love our country, and wax poetic about American exceptionalism on occasion.  I just want to remind everyone that the actual reality is much more gray.  The same Constitution that -- awesomely -- created democratic institutions simultaneously ensured continued enslavement of a huge portion of the country as well as continued disenfranchisement of the majority of the population thereof (e.g., women).

It was a product of its time.  With all the wonder and all the flaws.

But, okay, Judge Nelson wants to point out only the good stuff, and thinks that our particular founders were amongst "the finest group of statesmen ever assembled."  That's one take on it.  At the same time, just don't forget that we're talking about an all-white, all-male group in which half of 'em held others in permanent bondage.  There's probably an even more venerable lot somewhere in history.  But, okay, if you want to go the U.S.A.-chanting route, that's your right; just know that, to me, the actual history seems a fair piece more complicated.  Which -- like our awesomeness -- is worth a reminder from time to time as well.

My second reaction was to one of the footnotes that Judge Nelson drops.  A reference that -- like the second paragraph -- was both sort of random (i.e., orthogonal to the actual case) and that I thought reflected Judge Nelson's particular take on the world.

The losing party's brief in the case called a particular argument by the other side a "Hail Mary," and since Judge Nelson ultimately agreed with that particular argument, obviously, he didn't think it was a "Hail Mary" at all.  Judge Nelson went ahead and explained in the footnote was a "Hail Mary" was in this context, quoting a First Circuit opinion that said that "A Hail Mary pass in American football is a long forward pass made in desperation at the end of a game, with only a small chance of success.”

Now, if it were you and me writing the opinion, and you wanted to give an example of an actual Hail Mary pass, what example would you give?  The Doug Flutie pass for Boston College?   The Aaron Rodgers pass (the longest Hail Mary in NFL history)?   The Stanford Band play (not technically a Hail Mary, but the same idea)?  The original Hail Mary -- the 1975 Roger Staubach pass?  There are surely lots of possible choices.  Lots of super-famous catches.

Which one does Judge Nelson choose?  The only one that he mentions is "the 41-yard touchdown pass as time expired in BYU’s 1980 'Miracle Bowl' victory."

Which is perhaps not surprisingly the most memorable such pass for a double BYU graduate like Judge Nelson.

Tuesday, February 16, 2021

Metal Jeans, Inc. v. Metal Sport, Inc. (9th Cir. - Feb. 16, 2021)

Judge VanDyke gives a nicely concise three-paragraph description of the underlying facts behind today's Ninth Circuit opinion:

"Gary Topolewski is the owner of Metal Jeans and the former president and owner of Topolewski America, Inc. (“TA”). In 1990,1 Topolewski began selling METALbranded clothing and initially marketed these products through hard-rock music magazines. Over the years, Metal Jeans has promoted its apparel to a variety of consumer segments, including motorcyclists, skaters, snowboarders, lumberjacks, “head-bangers,” and (naturally) those who “drop[] napalm on the enemy.”

TA obtained the METAL mark for use on jeans, shirts, and boots in 1999. In 2005, Topolewski told the U.S. Patent and Trademark Office (“PTO”) that TA had continuously used the METAL mark on jeans, shirts, and boots since 1999. That turned out to be untrue—as to boots—and in a separate 2008 proceeding, Topolewski’s false statement led the PTO to cancel TA’s registration of the METAL mark. Topolewski immediately reapplied for the mark, but this time, through Metal Jeans. Metal Jeans obtained the METAL registration in 2013.

Metal Sport, on the other hand, is the exclusive licensee of a stylized “METAL” mark featuring a blocky, rough-edged font. Owned by retired Finnish powerlifter Ano Turtiainen, the mark is Turtiainen’s own creation. He drew the stylized mark sometime around 1997 and thereafter began selling specialized powerlifting apparel, gear, and accessories featuring his design. Turtiainen registered the stylized mark in August 2016."

So Metal Jeans sues Metal Sports in 2015 for trademark infringement.  The case gets litigated for four years, at which point the district judge grants summary judgment to the defendant on an unclean hands defense.  The Ninth Circuit reverses, so the case goes back to the district court for yet more litigation.

It's a tiny, niche blue jeans company suing a tiny, niche powerlifting company for trademark infringement.  My keen sense is that the parties have spent -- and now will continue to spend -- infinitely more on legal fees than this thing could ever possibly be worth.

But oh well.  It's America.  You're entitled to spend as much money on lawyers as you'd like.

And we'll happily take your business, thank you very much.  


Wednesday, February 10, 2021

People v. Kidane (Cal. Ct. App. - Feb. 10, 2021)

One reads -- as one might suspect -- a fair number of DUI cases in the Court of Appeal.  Particularly when, as here, someone's killed, so the charge is vehicular manslaughter (or worse).

Usually the accidents happen on the highway, on a residential street, or the like.  They usually don't happen in the parking lot of the Superior Court in Santa Monica.

Yikes.

I can't tell from the opinion what the defendant was doing in the parking lot.  Was he there for a hearing?  Was he just parking there?  Who knows.  But what I do know is that he rammed through a control arm parking gate and, according to the car's black box, hit the victim at 53.4 miles per hour.  To reiterate:  He hit that speed in the parking lot.

Yeah.  You're going to get convicted for that.  Especially when you're under the influence of marijuana at the time and, once you're caught, a body cam shows you telling the officer:  "I just want to smoke some weed."

Probably not the best thing to say.

Anyway, in the future, be careful in a courthouse parking lot.  It might seem like a fairly safe place.  But apparently there's no such thing.

Monday, February 08, 2021

Kipp v. Davis (9th Cir. - Feb. 8, 2021)

You can't get any closer than this.

It's a death penalty case in the Ninth Circuit, so you know (or at least suspect) it's going to be (1) hotly contested, and (2) potentially result in a politically-splint judgment.  Which, indeed, happens here.

It's a fairly unique set of underlying facts, and those facts explain in part why the case went down as it did here.  Martin Kipp is accused of committing two different murders.  He gets tried for and convicted of both of them, and in both cases, he's sentenced to death.  He eventually files habeas petitions regarding both convictions, and those petitions eventually reach the Ninth Circuit.

Back in August, the single panel (1) affirms the denial of one habeas petition, thus leaving his conviction and death sentence intact, but (2) reverses the denial of the other.  So now Kipp is merely sentenced to be executed once rather than twice.

Judge Nguyen -- who was on the panel -- dissented from the opinion that granted the one habeas petition.  And a judge on the Ninth Circuit, predictably, requested a vote to take the case en banc.

Now, in a normal case, the state (here, California) would also file a petition to take the case en banc.  After all, it lost, and wants to execute the person.

But, here, there's already an intact death sentence.  For the other murder.  The state sees no need to have two death sentences.  Plus, the Attorney General doesn't think that the fact-specific nature of the panel's decision meets the en banc standards in any event.  So even though the Ninth Circuit expressly invites the state to file for en banc review, it files a brief that says, nah, the state doesn't think it's right and/or worth it to take the case en banc.

Now, that doesn't stop the court itself from taking the case en banc if it wants.  So the vote goes forward.  Albeit in light of the state's own view that it doesn't feel that en banc review is warranted.

And the vote is close.  Super close.  15-14.  Against taking the case en banc.

The line-up is largely predictable, albeit with a few -- telling -- exceptions.  Every Clinton and Obama appointee votes against en banc review, except Judges Nguyen (obviously) and Owens.  Something to remember, for sure.

That gets you 14 votes against en banc review.  But you need (at least) one of the Bush and/or Trump appointees to get you to 15, a majority.

Every Republican appointee votes for en banc review.  Except Judge Miller.

There's No. 15.

Judge Miller writes his own concurrence to explain his vote.  He says that he thinks that the panel was wrong on the merits -- stating that "Judge Ikuta and Judge Nguyen have persuasively argued" that the panel erred -- but that these errors were fact-specific and didn't meet the en banc standards, especially in light of the facts noted above.  And, interestingly, seven Democratic appointees join this concurrence as well.

There's another separate concurrence that responds to Judge Miller, but the vote's the vote.  In the end, Kipp only gets sentenced to die once.

Today's votes nonetheless give you some insight into both how closely the Ninth Circuit is split between left- and right-leaning judges, as well as how the votes of particular judges may be critical in the future direction of the court.  Overall, it's a razor's edge.  This is not your Ninth Circuit of a decade (or even five years) ago.  Much less the Ninth Circuit of the 1980s and 90s.

Friday, February 05, 2021

Manderson-Saleh v. Regents of the UC (Cal. Ct. App. - Feb. 5, 2021)

This is the kind of lawyer I do not want to be.

Overly long -- and only tangentially (but still) relevant -- backstory first.  It's 20-some years ago, and I'm a 2L interviewing for summer associate positions.  I grew up in Virginia, so my preference was to get a job in D.C.  Tons of lawyer jobs there, obviously.  And I was not worried about just "finding a job" at the time since I had just won the Harvard Law School's Sears Prize (awarded to the two students with the highest grades in the first-year class), so I my focus instead was on finding a job that I thought I would like and that "fit" me.  (I was ultimately successful in that objective, though not the way I had intended; I ended up splitting the summer with two firms in D.C., and discovered most definitively that neither one of 'em worked for me. But in the end it worked out just fine, and after clerking ended up at a place that was most definitely to my liking.)

So one of the places at which I interview is Arnold & Porter.  Nice, traditional D.C. firm.  Well-known.  I like the people I talk with there.  They seem to be very good lawyers, with nice personalities and tell good stories about their lives.  Great.

At the end of the day, I go to this one partner's office for one of the final interviews.  The first thing that I notice -- the thing that no one could help but notice -- is the huge pyramid of cigarette packs, about 8 feet or so high, carefully and deliberately stacked in a corner of the office as a display.  This guy's the tobacco industry's attorney.  And he definitely wants you to know that fact.  He's proud of it; it's high-paying, complicated work.  That's what he wanted to do with his life.

That's the instant I decided that there was no way I was ever working at Arnold & Porter.  It's not that I disliked the guy or thought he was evil.  Yep, everyone needs an attorney.  Regardless of what they've done.  It just doesn't need to be me.  I had a great conversation with the guy, never mentioned to him (or anyone else) my internal decision-making, and just turned down the summer job offer sub silentio once A&P made it.  No fight, no fuss.  It's just not the kind of lawyer I wanted to be -- or, honestly, even to have in a firm of which I was a part.  Not my cup of tea.  At all.

Today's case involves another dispute where I would most definitely not elect to be on one of the two sides.  It's not a sexual assault or toxic dumping or any of your "classic" types of cases where perhaps people have the usual reaction.  But it's one that struck me very solidly as something I'd want to have no part of whatsoever, even though I suspect the vast majority of attorneys would have zero problem representing either side in the thing.

It's a simple pension dispute.  One from San Diego, as it turns out.  There's a nurse who's living her life and working at UCSD.  He's an oncology nurse, in fact.  So she dedicates the vast majority of her days to improving the lives of those with cancer.  Works there for a long time.

In 2014, she discovers that she herself has cancer.  Which I'm certain was devastating for her.  She gets (I presume) the very best, most informed treatment, and for a while, it works.  But after a couple years, the cancer starts to get the upper hand.  And by April 2016, the game's all but over.  She knows she's going to die.  It's inevitable.

Since she's worked at UCSD for a while, she's got a pension.  So in April, knowing she's dying, she asks to retire from her job.  Which makes sense, since she's never going to work again -- she's simply sitting at home during her final days.  She's only got one family member -- her daughter -- so she wants the daughter to be the beneficiary of her pension.  Fine.  That's the way things work.  You die, the kids get your survivor benefits.

She's way too sick to fill out all the forms herself -- plus I suspect she's got tons of better things to do with her few remaining days -- so she fills out a power of attorney for her daughter.  Again, totally fine, and totally permissible.  Her daughter fills out the forms and sends 'em in.  Her employer, UCSD, has no problem with that.  It knows -- understandably -- that she's dying, and is totally willing to have the daughter with the power of attorney fill out the forms.  They all get sent in, and everything's good.

Then UCSD sends some forms back, and the daughter fills 'em out and sends 'em in.  Then UCSD sends some other forms, and the daughter again dutifully fills them out and sends them back.  Then on September 16, UCSD sends yet some more forms back to be filled out.  Everyone knows full well what the dying person wants; UCSD just keeps sending more and more forms.  Bureaucracy.  Fair enough.

Sadly, four days after UCSD sends their final forms -- around a full month after the whole paper-shuffle process commenced -- the cancer finally wins, and the mother dies.  The daughter grieves, does all the things you need to do when your parent dies, and six days after her death, returns the final form.

At which point UCSD says:  Screw you.  Because she died before the final form got turned in, we're not paying anyone a penny.  We're keeping the entire pension ourselves.  No one gets anything.  Ha!

The daughter eventually finds a lawyer, who files a claim for both writ of mandate and breach of contract against UCSD.  UCSD in turn finds a lawyer who convinces a court that, yep, even though it's crystal clear what the mother wanted, and filled out all the forms, since the final one in UCSD's lengthy bureaucratic process didn't get submitted until just after she died, her pension entirely disappears.

The Court of Appeal reverses.  There's a thing called substantial compliance.  And we don't even need a remand to decide whether that transpired here.  It did.  Pay the deceased woman's daughter her pension.

So, in the end, from my perspective, anyway, an equitable, just and happy result.

But there's zero way I'd have represented UCSD in this one.

Pay the pension.  Don't piggishly keep it.  It's not that you'll be wasting tons of money on legal fees and the like -- though you surely will.  It's simply the right thing to do.  She's an oncology nurse who earned a pension working for you and who died of cancer, for Christ's sake.  Just give her only daughter the freaking pension benefits to which the mother was entitled.  I care not in the slightest that the cancer killed your employee days before she was able to return the last of the innumerable forms you sent her.  You knew she was dying, you knew she was retiring, there's zero doubt who she wanted her pension to go to, and I'm sure she tried her hardest not to die before you sent her the last form.

Just give her the money.  Don't hire lawyers and mightily litigate whether this dying woman gets the pension that she earned for her decade-plus of work with you.  It's literally a relative pittance.  Pay it.  Don't keep the money she earned for yourself.

Does UCSD have a right to fight the thing?  Sure.  Is UCSD entitled to a lawyer?  Definitely.  Does UCSD have a non-frivolous claim?  Definitely.  It convinced the trial court (Judge Taylor, down here in San Diego, who's very bright but also definitely a stickler for details), after all.  And if UCSD wants to fight even though the lawyer recommends that they simply pay (or settle), yep, that's their right.

But I most definitely would not do it.  Whether on my deathbed or in my daily life, I don't want to spend my own days working mightily to make effective someone's desire to stiff the daughter of a dying oncology-nurse mother her pension benefits.

Your preferences may perhaps vary.  Not mine.  Not here.

FWIW.

P.S. - Happy birthday to my grandmother today.  She turns 99.  Though I suspect she'd be horrified if she knew I was disclosing he actual age. 

POSTSCRIPT - Someone reached out to tell me that the dispositive substantial compliance issue wasn't raised by the parties either below or in the Court of Appeal -- it was raised by the justices themselves, at which point the parties submitted letter briefs on the point.  I'm personally happy the Court of Appeal did so; it gets to the right result.  Though it's unfortunate that this issue wasn't raised earlier, since to me, it's indeed the dispositive legal principle.

Thursday, February 04, 2021

People v. Clements (Cal. Ct. App. - Feb. 4, 2021)

There's wasn't anything from the Ninth Circuit (at all) or the Court of Appeal until late this afternoon.  But then out came this one.  Which recounts events that I definitely hadn't seen before in a published opinion.

And I've seen a lot.

Here's the first paragraph of the statement of facts:

"In January 1988, Clements and her ex-husband located the victim at a juvenile facility in New Mexico. Clements and the victim, who were brother and sister, had been separated during childhood. The three traveled some and eventually settled in Texas, during which time sexual relations took place between Clements and the victim, and between all three at once."

I'm fairly confident that it's a super bad idea to have a three-way with your sibling.  Fairly.

Mind you, I didn't expect that the consequences of these consensual events would be that the sister and the ex-husband killed the brother.  But, yep, that's what in fact went down here.

More proof that you can see something new every day.


Wednesday, February 03, 2021

Momox-Caselis v. Donohue (9th Cir. - Feb. 3, 2021)

It's only five sentences in the opening paragraph of this opinion, but it nonetheless consists of a densely-packed tale of depressing woe for everyone involved:

"Sergio and Maria Momox-Caselis are the natural parents of deceased infant M.M. The Department removed M.M. and her siblings from their home in 2013 based on long-term neglect by the parents. The County removed M.M. from her initial placement after receiving a report that the foster parents had abused another foster child, and it placed M.M. with new foster parents, Joaquin and Maira Juarez-Paez (collectively, the Juarez-Paez family). A few months after her new placement, M.M. died from an overdose of allergy medication administered by her foster father. Joaquin Juarez-Paez committed suicide shortly thereafter, and his suicide note stated that he had accidentally killed M.M."

My goodness.