Monday, July 15, 2019

People v. Marsh (Cal. Ct. App. - July 15, 2019)

What's weird about this case -- and what's never explained -- is why the defendant would go ahead and sever the brake lines of the victim's Jeep.  It doesn't seem like the defendant even knew the guy; he just parked his car in a parking space outside a fitness club in Pacific Beach, and when he comes out of the club, he notices a pool of brake fluid under his car, and a guy (later identified as defendant, another member of the gym) sitting in a white van nearby.

The victim's a Navy SEAL and, presumably, a fit guy.  Not someone you'd normally want to mess with.  Or cut his brake lines.


It's also somewhat strange that this counts as "assault with a deadly weapon."  Messing with a car is not normally the situation you envision when you think about someone committing that offense.

But it counts.

P.S. - I'm not saying it's the same guy; who knows.  But the defendant's name is Spencer Alan Marsh, and the opinion says he's in San Diego, and here's a random posting on a "Paranormal" web site that reads (in its entirety):  "For 17 months I have been criminally stalked, my time taken for granted, run out of work & money so I look a drug addict. IVE ALSO SEEN MAGIC AND PSYCHIC POWERS. So here's my attempt to get help: The CIA train on and hurt good people here in San Diego, CA. They reside at Beachcomber Shores & above Turquoise Street Coin Laundry in Pacific Beach, CA. Watch around early morning. My name: Spencer Alan Marsh."  So maybe that helps "explain" things?

People v. J.S. (Cal. Ct. App. - July 11, 2019)

Here's the rare case involving a juvenile offense that occurred entirely within Contra Costa County and that's nonetheless decided in the San Diego Superior Court with a San Diego judge and an appeal in the Fourth Appellate District.

Wednesday, July 10, 2019

People v. Bay (Cal. Ct. App. - July 10, 2019)

See what you think about this one.

The backpack in the car almost certainly belonged to one of the three people in the vehicle.  (I'm deliberately not going to tell you which one of the three is the defendant.)

The backpack was located behind the center console of a parked vehicle.  The car was "packed tight" and incredibly messy.  Inside the backpack was (1) some marijuana, and (2) a gun.

The person in the driver's seat knew there was marijuana in the backpack but said nothing about the gun.  He also gave a false name when asked by the police.

The person in the passenger's seat was the girlfriend of the (recently deceased) registered owner of the gun, and inside the gun case was a slip of paper with the (dead) boyfriend's name on it.

The person in the back seat was the brother of the (recently deceased) registered owner of the gun; the guy whose name was on the slip of paper.  There was also a disassembled rifle in a gun case next to the person in the back seat.

There are no fingerprints on the gun or backpack or anything in it.  The police took some DNA swabs from the backpack and its contents but never tested them.

Three groups of questions:

(1)  What's your bet as to whose backpack it was?  In other words, if you had to guess, who'd you put your money on as the actual owner of the thing?

(2)  How confident are you of that assessment.  What are the odds you're right?  Is it a one in three thing?  More likely than not you're right?  Virtually certain you're right?  Correct beyond a reasonable doubt?

(3)  Assume the driver was convicted for possessing the gun.  Do you think the evidence against him proves his guilt beyond a reasonable doubt?  Now assume the woman in the passenger seat was convicted.  Is the same also true for her; e.g., is she the owner beyond a reasonable doubt?  Ditto for the person in the back seat; is the evidence clear that he owned the backpack?  (There's little or no evidence that the backpack belonged to all of them, or anyone else, so assume it's gotta be one of the three.)

Needless to say, only one of the three was actually charged with possessing the gun.  And the Court of Appeal concluded that the evidence against this person was sufficient.

Which one do you think it was?

And do you agree that the evidence against this person established guilt beyond a reasonable doubt?

Tuesday, July 09, 2019

U.S. v. Briones (9th Cir. - July 9, 2019)

I hadn't thought about this.

I've read a ton of cases about LWOP (life without the possibility of parole) sentences for juvenile offenders in state court.  You generally can't do that; only in the rarest of cases is it permissible, in part because youthful offenders have a real possibility of change.  So you've got to at least hold out the prospect of release if they do.

Makes sense.  But what I hadn't thought about are life sentences in federal court.  Because, there, we got rid of parole.  So any life sentence is, by definition, an LWOP.

I'm sure others in the field know about this issue in some detail.  Just not me.

Today, an en banc panel votes 9-2 that the LWOP sentence for a 17-year old kid who participated in a robbery that resulted in a murder was unconstitutional.  Significantly, even the government admitted that the defendant had been a "model inmate" during the nearly two decades he'd been in prison for this offense, with not even a single disciplinary infraction.  That goes a long way to demonstrating that someone can indeed change.

Mind you, we only have that information because the whole LWOP jurisprudence is new, and so this is a habeas case.  For new juvenile offenders, we've got to guess whether or not they're going to be a model inmate.  And if we guess wrong -- if we think they won't change, but they in fact do -- there's nothing the inmate can do about it.  They're still in prison for life, since we don't have parole on the federal side.  Even if they end up even more reformed than Mr. Briones here.

Which makes me think that it might make sense to reintroduce parole on the federal side, at least for juvenile offenders.  Because after 20 or 30 years in prison, doesn't it make some sense to see whether the inmate has sufficiently turned his life around to be released?

Anyway, LWOP in the federal system.  In which there's no P.  A difficult problem.

Monday, July 08, 2019

Hoffman v. Pulido (9th Cir. - July 8, 2019)

Appellate courts in California are definitely returning from vacation slowly.

On the state side, today gives us (1) insubstantial edits to a prior opinion; (2) publication of a previously unpublished opinion (that simply does what the Ninth Circuit did in a prior unpublished opinion); and (3) a California Supreme Court opinion that affirms the Court of Appeal and agrees with the view of the California Department of Social Services in a welfare case.

I'd say that none of those opinions are exactly earth-shattering, though I fear that might perhaps trigger someone still reeling from the 7.1 earthquake over the holiday.

On the federal side, there's only one published opinion.  In a fact-specific decision, it holds that one of a prisoner's prior lawsuits was dismissed for lack of subject matter jurisdiction and hence does not count as a "strike" for purposes of having to pay filing fees in the future.  Mind you, the guy's filed something like 21 different lawsuits in the past, and the last footnote mentions that some of those lawsuits might perhaps also count as a strike -- something the district court will have to decide on remand.  So it's not like this opinion is likely to make much of a difference on the merits.

So here's my recommendation to you:  Take a day off reading appellate opinions.  Pretend like it's still the holiday weekend.

Sans the earthquakes.

Wednesday, July 03, 2019

Edge v. City of Everett (9th Cir. - July 3, 2019)

The Ninth Circuit wants you to spend your Fourth of July holiday pondering the following issue:

What's your anal cleft?

Yes.  Seriously.

I'll let you read the opinion to figure out why this is important in the context presented.  But the panel unanimously concludes that people of ordinary intelligence understand what "anal cleft" means, and the statute at issue is accordingly not unconstitutionally vague.

As to the overall merits of the case, I admit to some sympathy with both sides.  There's no way I'm ever going to patronize a "bikini bistro" in which women in pasties and g-strings serve you drive-through coffee.  I'm also quite confident that there are indeed some secondary (deleterious) effects of these establishments; e.g., "how a customer in a truck approached the window and began 'groping' the barista in intimate areas . . . [while] the next customer in line . . . was clearly touching his genitals through his clothes as he was waiting his turn.”  Not something I especially want to see with "my 2 young daughters" in the car.

On the other hand, I think there is an element -- an element -- of expression involved here.  Various baristas testify that their choice of clothing in this regard is an expression of female empowerment, body self-acceptance, etc.  Now, to me, the commercial nature of the underlying transactions suggests that there might be other things, apart from speech, that are primarily motivating the conduct at issue. And, if you want, you can always wear your thongs and pasties off the clock, and the fact that you're probably not ordinarily parading around in this stuff when not being paid to do so suggests that the message-specific motivation for one's conduct is not extraordinarily strong.

Nonetheless, although there are alternatives, and conflicting motives, and all sorts of secondary deleterious effects, I nonetheless think that there is a message here.  And, unlike today's opinion, I think it's not one that people entirely fail to understand.  Sure, that meaning might be ignored (or overlooked) by some people.  But in the modern era, I'm not at all of the view that people fail to understand what body acceptance means -- and the various ways it's demonstrated.  (Moreover, I doubt this case would come out differently if the baristas at issue had signs that said "We're nearly naked to show our empowerment and acceptance of ourselves," thereby making the message crystal clear.)

I also wonder whether the Ninth Circuit isn't distorting precedent a bit; though, in this regard, it's hardly alone.  The panel bases its opinion on the holding that to be protected speech at all, the conduct at issue has to have a "great likelihood" of being understood by the public as the intended message.  But that's not actually the standard the Supreme Court set.  That quote comes from the Supreme Court's opinion in Spence, which held that displaying an upside down flag with a peace symbol attached was protected speech.  In so holding, the Court noted that it wouldn't be difficult for a "great majority of citizens" to understand what that means, and that indeed, the "likelihood was great" that that message would be understood.

But the Court never said that was the test.  It just said it was true in that case.  A fact that supports the expressive nature of the conduct but hardly seems essential.  To take but one example from my own (bygone) era, I doubt that most people will readily understand what I mean if I hold up a sign saying "Bong Hits For Jesus."  But that's undeniably protected speech (even if not, according to a close 5-4 opinion, necessarily protected in a school.)

Ditto for the other case in which this purported standard was articulated, Texas v. Johnson (the flag-burning case).  Again, the conduct there was held to be protected speech, and the meaning of burning a flag isn't totally hard to understand.  Yeah, the Supreme Court did there what the Ninth Circuit does here:  quotes Spence out of context, with inserted words to make it seem like the quote is a test, rather than a factual description.  A test that, in any event, was met there.

On the jurisprudential merits, it seems silly to hold that speech isn't speech at all unless there's a "high likelihood" that people will understand exactly what you mean.  I agree that the more they understand it, the more we might want to protect its exchange in the marketplace of ideas.  But the protection for saying "Trump is God Personified," for example, or conduct displaying such a message, doesn't seem to me to depend on whether people accurately perceive my intention as being pro-Trump, anti-Trump, or anti-religious.  It's a message.  Whether you get it or not hardly is itself dispositive as to whether I'm making a message.  Much less is it so dispositive that the standard is whether most people have a "high likelihood" of groking my intended meaning.

An example, in my view, of a factual statement in a prior opinion that was never intended to be a test and yet becoming one over time by people with a different agenda.

One final point about the opinion.  This case is about the right of women (who are the relevant actors here, I believe) to "wear[] almost no clothing," in the words of the opinion, at work.  It's interesting to note that the panel here consists entirely of women.

One might wonder if (some) men might address things differently.  And how it's a better world that women's permissible legal choices are no longer decided entirely by men.

Tuesday, July 02, 2019

JBB Partners v. Fair (Cal. Ct. App. - July 2, 2019)

It's one thing to impose sanctions for a frivolous appeal.  It's another to publish that opinion and to savage the person you're sanctioning.

The target of the Court's ire is (inactive) attorney Robert Thomas Fair.  Mr. Fair agreed to a $350,000 settlement and then backed out of it.  Spawning six years of contentious litigation and appeals.

Ending in today's $40,000+ award of sanctions.

The Court of Appeal and the trial court are undeniably correct that Mr. Fair agreed to settle the dispute, even if that settlement wasn't necessarily enforceable under Section 664.6.  Here are the basic facts of the acceptance(s) -- which are pretty darn stark:

"Russo, plaintiffs’ attorney, sent the July 4 offer to Fair via email on the evening of July 4, 2013, stating that it was plaintiffs’ “LAST AND FINAL OFFER,” and setting forth the 10 required terms of the settlement. The final paragraph of the offer stated, “WE require a YES or NO on this proposal, you need to say ‘I accept’ and I will work the balance of this holiday weekend to get the paperwork drafted. . . . Let me know your decision.

The next day, July 5, at 10:17 a.m., Fair responded, “Jack, the facts will not in any way support the theory in your email. I believe in Cameron. So I agree. Tom [F]air.”

At 10:28 a.m., Halliburton, another attorney for plaintiffs, sent an email to Fair stating, “I don’t understand your email. Are you rejecting Jack’s settlement offer or accepting it? Please be unambiguous, because I am about to file the complaint and ex parte papers unless we hear an unambiguous acceptance.” . . .

At 1:02 p.m., Fair responded, “I said I agree. Took wording right from Jack’s email. I agree.” At 1:04 p.m., Fair left a voicemail for Halliburton, stating that he had not been able to respond earlier because he had been playing golf on a course that did not allow cell phones and that “I agreed to your terms . . . I agreed. We have a deal . . . you can stop proceeding at this point. . . .” At 1:07 p.m., Fair sent an email to Halliburton in which he stated, “I do not believe you gave proper notice. Also I agreed with your terms. You should [n]ot have filed. We clearly have an agreement. tom fair [sic].” At 1:36, Fair sent an email to Russo, stating, “Filing does not obviate agreement/acceptance. Pls [please] acknowledge.”

At 1:53 p.m., in an email to Fair, Russo stated, “This confirms full agreement, I will work on the formal settlement paperwork which will conform to the settlement agreement made today based on the 10 numbered paragraphs. . . . I will seek to get that settlement paperwork to you for review by Monday with the goal of getting it all finalized and signed next week. The settlement is otherwise binding under [section 664.6].” At 1:55 p.m., Fair sent a text message to plaintiffs’ counsel, stating “I have accepted by phone and emai[l]. I said accepts which is the same as ‘agreed.’ You must stop and you must tell the court we have an agreement.” At 2:09 p.m., Fair’s emailed response to Russo’s 1:53 p.m. email confirming full agreement was “Ok.”"

Uh, I pretty much cannot even imagine any more of an obviously binding agreement.  There was a deal.  Period.  Which is why the trial court properly granted summary judgment on that point.

As for the sanctions order:  Wow.  Check this out:

"In the present case, “[a]lthough we recognize sanctions should be used sparingly to deter only the most egregious conduct [citation], we find them warranted here.” (Kleveland, supra, 215 Cal.App.4th at p. 557.) That is because defendants’ arguments on appeal are not “supported by a careful reading of the record or the law nor could these arguments be reasonably characterized as presenting unique issues or arguing for extension, modification, or reversal of existing law.” (Kleveland, at p. 557.) 

First, the history of this matter is relevant to our determination of the propriety of sanctions. [Cite] This case began almost six years ago, with a settlement offer to which Fair—a licensed attorney—agreed in writing some six times. [Cite]

Additional prior conduct is also relevant to our sanctions determination, including defendants’ repeated attempts to arbitrate this matter, together with a tardy appeal to this court of one of the trial court’s orders denying their motion to arbitrate, despite their failure to appeal the denial of their initial motion to arbitrate. [Cite]  In addition, the trial court granted plaintiffs’ special motion to strike a cross-complaint filed by defendants, after finding that defendants’ claims did not constitute protected speech and defendants were not likely to prevail on the merits because all of the claims in the cross-complaint were protected by the litigation privilege. [Cite] We affirmed the court’s order on appeal. [Cite] As we stated in our 2018 opinion affirming the grant of the anti-SLAPP motion, defendants “offered misleading quotes, taken out of context from the demand letter,” to argue that plaintiffs’ attorney was threatening criminal prosecution for Fair’s alleged Ponzi scheme if Fair did not agree to pay plaintiffs $350,000, whereas he in fact “threatened no such thing.” [Cite] Defendants raised a similar argument in support of their motion for summary adjudication and in this appeal, which provides further evidence of frivolousness. [Cite]

Defendants also offered misleading partial quotes from one of our own prior opinions in this case in which we reversed the trial court’s judgment enforcing the settlement against defendants, pursuant to section 664.6. They then relied on this misleading language to argue that this court found that no settlement in fact occurred. . . . In both their anti-SLAPP appeal and the present appeal, defendants have distorted the language and intent of our own 2014 opinion to support their claim that we held in that opinion that no settlement had been reached, which we explicitly stated in that opinion we were not doing. . . .

In addition, in their supplemental briefing opposing sanctions, defendants purport to demonstrate the merit of this appeal by asserting that “there are several potential triable issues of material fact regarding the existence, actual terms, and enforceability of the parties’ purported July 5, 2013 settlement agreement.” They then repeat in summary form the same completely meritless arguments raised in the trial court and in their opening brief on appeal, in which they offered selective facts, misrepresented the record, and/or argued completely inapplicable law. . . .

For all of these reasons, we conclude that “any reasonable attorney would agree that the appeal is totally and completely without merit” and would not have raised the arguments defendants make on appeal, which are merely rehashed in the supplemental briefing in opposition to imposition of sanctions. [Cite]  In light of this conclusion, we need not directly address plaintiffs’ additional arguments that there is evidence demonstrating that defendants filed this appeal for the subjective purpose of delay because we find that the history of this case and the indisputable “total lack of merit” of this appeal provide strong evidence of defendants’ subjective intent, i.e., that they “ ‘must have intended it only for delay.’ ” [Cite] 

In short, we are persuaded, by clear and convincing evidence, that the pursuit of this appeal was frivolous, and warrants sanctions."

Remember:  This is a published opinion.  That's gotta hurt.

Plus, the Court of Appeal not only sanctions Mr. Fair, but also his attorneys.  Which is a reminder not to take on frivolous appeals brought by litigious clients.  Particularly lawyers.

A total smackdown by the Court of Appeal.

Friday, June 28, 2019

Claiborne v. Blauser (9th Cir. - June 28, 2019)

This is a long, 27-page, single-spaced opinion.  Made longer by the fact that the defendant didn't object at trial, so we've got to review for plain error.  (Though the district court said it would have done the same thing even if an objection had been made, further complicating things.)

Notwithstanding the length, the opinion boils down to a very simple question:

Do we really have to publicly shackle a plaintiff during his civil trial when he's (1) 63 years old, (2) mobility impaired, and (3) had only ever committed nonviolent drug and property offenses?

Probably not.

Wednesday, June 26, 2019

Biel v. St. James School (9th Cir. - June 25, 2019)

When I'm right, I'm right.  When I'm wrong, I'm wrong.

Vis-a-vis this opinion, I was a little bit of both.

When the panel decision came out late last year, I was definitely on board with the majority opinion by Judge Friedland.  I thought it made great sense.  Still do.

There was a dissent, and I suspected -- correctly -- that it'd get some traction at the en banc stage with various conservative judges on the Ninth Circuit.  But I wrote back in December that these individuals would not be a majority of the court, and that an en banc vote would fail.

On that, I was right.

But I ended the post by saying that I didn't think the vote would be "anywhere near" a majority to take the case en banc.  On that, I adjudge myself incorrect.  The dissent from the denial of rehearing en banc received at least nine votes, since nine judges joined Judge Ryan Nelson's dissent.  All of the signatories were appointed by Republican presidents; indeed, every Bush appointee signed on, as did most of the Trump appointees. 

That doesn't get you a majority.  But it does get the dissent a solid third.

Times are a-changin' on the Ninth Circuit.  There was a period in which moderate liberals were a very large majority on the court.  You're now seeing the resurgence of a solid core of very conservative judges.  Not a majority, to be sure.  But solid.

And I suspect you'll see lots more dissents from denial like this in the future.

Tuesday, June 25, 2019

People v. Toledano (Cal. Ct. App. - June 24, 2019)

Great news for Newport Beach attorney James Toledano!  His conviction for extortion was reversed by the Court of Appeal for instructional error.

Bad news, though:  The Court of Appeal simultaneously holds that there was sufficient evidence to support his conviction, so Mr. Toleano continues to face a retrial on remand.  This time with proper instructions.

Plus, at least at present, he's still ineligible to practice law.

The underlying facts bespeak substantial caution whenever you're negotiating a civil settlement in which one of the aspects of the case is that some of the parties previously had an affair and you're arguably getting "hush money" to keep it quiet.  Because maybe, depending on the facts, that counts as extortion.

And you'll find yourself 75 years old, ineligible to practice law, unable to afford an attorney, and with a court-appointed lawyer for your second criminal trial.

Guillory v. Hill (Cal. Ct. App. - June 25, 2019)

The end of page two of today's opinion tells you probably all you need to know about the case.  The two sentences therein say:  "Plaintiffs originally sought over $1 million in damages but ultimately obtained an award of less than $5,400. Plaintiffs then moved for almost $3.8 million in attorney fees in a 392-page motion containing, in the trial court’s words, “bloated, indiscriminate,” and sometimes “‘cringeworthy’” billing records."

Yikes.  Needless to say, the Court of Appeal affirms.

Can you get an award of attorney's fees even if you obtain a relatively small award of damages at trial?  Of course you can.

But while pigs get fat, hogs get slaughtered.

Plaintiffs here asked for a ton of money at before trial, and then their lawyers asked for a ton of money after trial.  Perhaps even worse, the fee request at issue basically just dumped a huge pile of billing records in front of the trial court and said, essentially, "Sort it out yourself."

That, plus the fact that the bills were "crammed with obfuscating and questionable" entries, doesn't get you what you want.  It gets you exactly the opposite.  Nothing.

This is a good case to cite for the proposition that a bad (or abusive) fee motion is reason alone to deny fees altogether.  Though I doubt many cases involve nearly as bad of facts as these.

(The firms that represented the plaintiffs below, as well as on appeal, are Quintilone & Associates and the Eisenberg Law Firm.)

Monday, June 24, 2019

People v. J.M. (Cal. Ct. App. - June 24, 2019)

A kid in high school is upset that he's short on credits to graduate and tells his friend, in a private conversation, that he's going to "blow up the school, shoot it" and that he knew how to get an Army grenade.  The friend thinks that the kid is joking, but isn't certain.

The Court of Appeal holds that's a felony, and counts as "a false report [that] a bomb or other explosive device would be placed in [the] school."

Thursday, June 20, 2019

People v. Bankers Ins. Co. (Cal. Ct. App. - June 19, 2019)

I didn't think there'd be a dissent to this one.

The trial court declares the defendant's bond forfeited when his attorney shows up a little late to a hearing.  The attorney had called in, telling the clerk that he'd be there in 45 minutes, but didn't leave his name.  The attorney walked in five minutes after the court declared the bond forfeited, so the trial judge corrected the forfeiture.  No blood, no foul.

Three months later, the defendant skips.  The bond is ordered forfeited.  But the surety says that it's entitled to its money back because the trial court forfeited the bond earlier, and wasn't allowed to change that decision five minutes later without providing notice to the surety.

The Court of Appeal, like the trial court, disagrees.  It doesn't make any sense, Justice Danner says, to stop the trial court from correcting straightforward errors in the forfeiture process five minutes after they've transpired.  If the lawyer was a little late (especially if he had an excuse), and the "forfeiture" box was never entered in the minutes and corrected during the same court session, that event should not have any significance -- much less a dispositive one that allows the surety to avoid its obligation in the event the defendant flees.

It's a common sense ruling.

But Justice Mihara dissents.

It's not that Justice Mihara doesn't have a point.  The statute does say that you've got to give the surety notice once you forfeit a bond in open court.  And there's an argument that this makes sense even for a lawyer being five minutes late; it give the surety the opportunity to "reassess" the flight risk of the defendant (and, arguably, the competence of counsel).

So there's an argument.  Backed up by precedent.

But it's a weak one.  Or at least weaker, in my view, than the arguments the other way.  Particularly when the trial court makes mistakes; let's say, for example, that the defendant was there, and the trial court declared the bond forfeited, but it was a mistake, which the trial court realized ten seconds later (e.g., the defendant said "Here," but the trial court didn't hear him, and declared the bond forfeited, only to reinstate it seconds later when the defendant said "But I said I'm here!" and the trial court said "Oh, sorry, my bad, I didn't hear you.")  Under Justice Mihara's view, you're under a mandatory duty to notify the surety -- even after the correction -- and if you don't, the bond can't be forfeited even if the defendant later skips.  Doesn't make sense.  Ditto for the situation here.

So Justice Danner writes a common sense opinion.  As to which I'm on board.

Makes justice better.

Tuesday, June 18, 2019

Martinez v. Ryan (9th Cir. - June 18, 2019)

It's been a heavy week for death penalty cases recently.  I don't know whether it's the summer or just random, but lots and lots of murder opinions in the pipeline.  Which are always depressing, and that rarely show people at anything other than their absolute worst.

Today gives us a Ninth Circuit opinion that unanimously affirms the denial of a habeas petition in a death penalty case.  It's authored by Judge Milan Smith and joined by Judges McKeown and Fletcher. So the chances of en banc or Supreme Court review are essentially zero.  In California, that wouldn't mean much as a practical matter.  But this is Arizona, in which they at least used to actually carry out a fair number of executions.  (At least until it took two solid hours, and fifteen different attempts, to execute the last guy, at which point the Arizona governor put a moratorium on executions, until the state figures out how to actually "humanely" kill someone.)  So there's at least some chance that this guy will in fact be put to death at some point.

It's also not a case where you can't figure out why the death penalty was imposed.  It's someone who killed an on-duty cop, so that's going to get you sentenced to death more times than not.  And, as if that wasn't enough, the Ninth Circuit's opinion drops this little nugget in a footnote on page seven:  "Hours after murdering Officer Martin, Martinez robbed a convenience store in Blythe, California, and fatally shot the store clerk. Martinez’s convictions and sentences for that robbery and murder, however, are not before us."

Making it virtually certain -- if it wasn't already -- that the jury's going to sentence the guy to die.  As well as diminishing whatever residual sympathy a Ninth Circuit panel might have for the petitioner.

Monday, June 17, 2019

Swanson v. County of Riverside (Cal. Ct. App. - June 17, 2019)

This is an interesting opinion on several levels.

First, the (alleged) facts are fairly striking.  Brandon M. attacks his mother with a pair of scissors and is admitted to the Riverside County Regional Medical Center on a 72-hour involuntary hold.  But the hospital purportedly released him before the 72 hours has expired; allegedly,  "[leaving] Brandon in a waiting room and discharg[ing] him for lack of space before the expiration of the 72-hour period, then provid[ig] him a bus pass to return home" having never even assigned him a room.

Which is no problem if Brandon's not a danger to himself or others.  (Though he has just attacked his mother with scissors, so we might want to be a bit cautious here.)  But what does Brandon do once he gets home from the hospital?  He promptly uses a baseball bat at the home to bludgeon three people there to death.  Including, ironically, a technician who was installing an alarm system in the home, presumably to protect the family from . . . Brandon.  Not good.  (Some of the briefs in the dispute are redacted and nonpublic, but for more information about the underlying offense, including some facts not discussed in the opinion, check this out.)

The County files an anti-SLAPP motion, which successfully delays the lawsuit for some time.  But the trial court correctly denies it and the Court of Appeal affirms.

Beyond the facts of the case, the other interesting component of the opinion is the legal analysis.  Justice Huffman authors an 18-page disposition.  But the legal analysis of the actual holding of the thing is only two pages long, finding (appropriately) that the lawsuit didn't "arise out of" protected speech -- and instead arose out of conduct -- so the anti-SLAPP statute didn't apply.  The majority of the opinion, both before and after that holding, addresses other grounds for denying the motion, and simply serves to "express doubt" as to various County defenses.

That's a fairly long time to talk about issues that you're not actually deciding.  Maybe helpful to other (and/or lower) courts in the future, or on remand.  But classic dicta.

Expressed at length.

Thursday, June 13, 2019

Kirkpatrick v. Chappell (9th Cir. - June 13, 2019)

What a tangled web.

It's a death penalty case, and Judge Reinhardt writes the original opinion (joined by Judge Wardlaw), with Judge Kozinski writing a classic Kozinski dissent.  Needless to say, given that Judge Reinhardt wrote the majority opinion, you know how the case turned out:  the denial of the defendant's habeas petition was reversed and remanded.

The California Attorney General files a motion for panel rehearing (and rehearing en banc), an event that's likely going nowhere.  But while that motion was pending, troubles begin for Judge Kozinski, and he ultimately resigns at the end of the year, before the motion is decided.

Now, you may think:  "The guy dissented.  Not like his replacement is going to change anything."  And you'd be right.  Nonetheless, you've got to replace him, let the new member of the panel review the briefs and oral argument, and weigh in.

So Judge Christen gets drawn.  She's working on getting up to speed on the briefs and arguments.

And a few months later, Judge Reinhardt dies.  (Parenthetically:  Google, can we please get a better picture of the guy to pop up when someone does a search for "Judge Reinhardt dies?"  It's almost like you looked long and hard for a close-up photograph of the guy with his eyes closed.)

So now we have to replace Judge Reinhardt.  Judge Bea gets drawn to replace him.

And, perhaps predictably, the result of the opinion now changes.  The new panel orders the case reargued and, today, unanimously rejects the defendant's habeas claim on the merits.

The dispositive difference just being purely a matter of timing.  Had the court acted just a little faster on the pending motion, the defendant would have a live habeas claim, and chance for reversal.  But in a twist of fate, his victory gets taken away.

It doesn't really matter, of course.  As I mentioned earlier today (again, coincidentally enough), it's not like Mr. Kirkpatrick is likely to be executed anyway, since he too is in California.  Which, again, ironically, is exactly what Judge Kozinski said at some length in his original dissent to Judge Reinhardt's opinion in 2017.

To end where I began:  A tangled web.

People v. Caro (Cal. Supreme Ct. - June 13, 2019)

It seems somewhat a waste to write an 100-plus page opinion about someone who, notwithstanding the sentence, will almost certainly not actually be put to death.  Still, you want to get it right.  So here it is.

A woman with no prior criminal record who killed three of her four kids after a domestic dispute (and then tried to kill herself).  Another case where it's hard to fathom how a jury -- or collection of juries -- intelligently and rationally distinguishes between those defendants who should spend the rest of their lives in prison or be killed.

And another case in which the conviction and death sentence is unanimously affirmed.

Wednesday, June 12, 2019

United Grand Corp. v. Malibu Hillbillies (Cal. Ct. App. - June 12, 2019)

The Court of Appeal delineates the arguments and conduct of Los Angeles attorney Cyrus Sanai in this comprehensive, 37-page opinion.  It is devastating.  I've never seen the Court of Appeal savage an appellate brief so thoroughly as Justice Stratton does here.

Oh, and the opinion ends with this neat little kicker:

"Sanai did not report to jail and the trial court issued a bench warrant for his arrest. He is currently a fugitive from justice. He has willfully disobeyed the trial court’s order. Under the circumstances he is not entitled to challenge the sanctions orders on appeal."


People v. John (Cal. Ct. App. - June 12, 2019)

I'm seriously confused.

Is the Court of Appeal really saying that if both sides (i.e., the defendant and the People) recognize that (1) you're obviously guilty of the offense (i.e., you did it), but (2) you're also obviously insane (i.e., could not recognize right from wrong at the time of the crime), you can't agree to that as part of a plea deal?

That seems to be what today's opinion holds.  But such a holding seems to be so potentially wrong that I'm not at all sure that's what Justice McKinster actually means.

Part of the opinion seems obviously right.  You can't plead "guilty" but also "not guilty by reason of insanity."  One's guilty, the other's not guilty.  So, here, when the defendant ultimately changed her plea to "guilty" -- but both sides stipulated she was insane -- those two don't really mesh.  What you are really pleading is "not guilty by reason of insanity," and the People are agreeing.  So defendant gets to "withdraw" her guilty plea because that's not what you really plead to when you're saying you are insane.

So far so good.

But the Court of Appeal seems to be saying that you can't "mix" these two types of pleadings at all.  That you can't (1) admit that you did the offense (i.e., "plead guilty" to that), but (2) say that you were insane -- and have the People agree to that as well.  The Court of Appeal says that that's "[a]n illegal plea bargain," and hence "null and void."

That implicit holding seems weird.  Why can't the parties so agree?  Especially if it's true.  We want the parties -- desperately -- to strike precisely such deals, particularly when such a plea accurately reflects the obvious mental state of the defendant at the time.

The Court of Appeal correctly describes how the whole plea thing generally works in cases like this.  If you plead not guilty alongside not guilty by reason of insanity, you've got two trials; the first one about whether you did it, and a second one (if the first one finds you did it) about whether you were insane at the time.  Cool.  By contrast, if you just plead straight up NGI (not guilty by reason of insanity), you're essentially admitting that you did it, thus obviating the first trial, so the only issue is whether you were sane.  Again:  Totally fine.

But what I'd like to hear the Court of Appeal say -- at least if it believes it to be true -- is that it's fine for the parties to agree to (1) let the defendant change his plea from not guilty and NGI to a plea of only NGI (i.e., to essentially admit the offense), and (2) have the parties agree that the verdict will then be NGI (i.e., to stipulate that the guy was insane, so will be committed rather than incarcerated).  As the opinion now reads, it nowhere says that's permitted, and at least implicitly, with all these claims about "illegal plea bargains" and the like, seems to cast some doubt as to whether it's legal to do what the parties clearly attempted to do here; i.e., to strike a deal where everyone recognizes the guy did it but was insane.

Which makes me wonder whether the Court of Appeal really thinks you can't do that, or whether it just thinks that the particular "technical" way the parties were went about doing it (with a "guilty" plea) was merely a procedural error that can easily be corrected on remand to accomplish what the parties intended.

It'd be great if the Court of Appeal could make that a bit clearer.  If only because I've read the opinion three different times now, and am still not positive which of these two things it actually means.

Either position is arguably defensible.  I just want to know which one the Court of Appeal thinks is the actual law.

People v. Raybon (Cal. Ct. App. - June 11, 2019)

I can state with near certainty that the California Supreme Court will grant review of this opinion.

There's basically no choice.  The Court of Appeal's starkly worded opinion holds, unanimously, that pursuant to the plain language of Proposition 64 (which legalized marijuana), it's no longer a felony to possess this product in prison.  You can still be subject to discipline -- potentially heavily -- for having it in prison, or convicted for smoking it in prison.  But it's not a felony to possess it, at least if you're 21 and it's under an ounce.

There is, in fact, a strong argument that that's exactly what the text of the statute provides.

So why does the California Supreme Court basically have to grant review?

Because, three months ago, a different panel issued this opinion.  Unanimously.  Holding exactly the opposite of what the Court of Appeal holds in the most recent opinion.

You can't have squarely conflicting appellate holdings on the validity of a substantive felony that's an incredibly commonly charged offense.  There needs to be a rule.  One rule, applicable everywhere in the state.

So the California Supreme Court has to step in and decide the matter once and for all.  Quickly.

So they'll grant review in this case.  And, while they're at it, they need to grant review in the case from March as well.  A petition for review has already been filed in that case, and a couple of weeks ago the Court extended the time to grant or deny review to July 8.  After this most recent opinion, the Court should grant review in both cases.  And decide which panel was right.

Tuesday, June 11, 2019

City and County of San Francisco v. Uber (Cal. Ct. App. - June 11, 2019)

Had the Court of Appeal not published this opinion, I would never have known that ride-sharing services like Uber and Lyft "accounted for nearly 65% of all moving violations for driving in transit lanes and bicycle lanes, obstructing bicycle lanes and traffic lanes, failure to yield to pedestrians, and illegal U-turns in business districts" in San Francisco.

That's a shockingly high number.  Amazing.

Monday, June 10, 2019

People v. Kidd (Cal. Ct. App. - June 10, 2019)

The decision to publish this opinion definitely got me thinking.

The question in many of these cases -- including this one -- is when a reasonable person would no longer feel "free to leave" when confronted by the police.  That's a toughie.  Most of the time, we don't leave a police encounter, even if it's unwanted (as it often is), because we don't want to be rude or because we're not sure we're allowed.  From a risk/reward perspective, it's not usually too big of a pain to converse with the police, whereas if you attempt to flee the encounter, rightly or wrongly, you may end up getting arrested.  Or worse.

So from a practical point of view, the realities of the situation almost always "coerce" you to interact with the police.

But Fourth Amendment doctrine obviously can't say that you're detained whenever the police talk to you.  If only because, as a factual matter, you are, in fact, free to leave in a variety of situations.  As a result, we've to to distinguish between when there's an actual Fourth Amendment seizure --  a set of facts that requires probable cause, or reasonable suspicion, or something like that -- and when there's not.

No easy task.  Which is amply revealed by the diversity of cases that deal with the subject, which are by no means subject to facile catalog.

Today's opinion is yet another of these fact-intensive cases.  But the facts are fairly straightforward.  An officer sees a couple of guys sitting in a car in a residential area during the "wee hours of the morning" with their fog lights on.  That's definitely not reasonable suspicion of a crime, but at the same time, not exactly something usual, either.  So we want -- or at least, I want -- the officers to investigate.  Which they do.

The police make a u-turn in their car, park 10 feet behind the suspicious/interesting vehicle, shine their floodlight on the car, and approach the thing at a fairly brisk pace to talk to the occupants.  No red lights, no guns drawn.  But, still, a couple of floodlights from a police car ten feet behind you.

Would you feel free to leave?

My personal answer is:  No.  Which is what the Court of Appeal says as well.  Holding that since it was thus a detention, there had to be reasonable suspicion of a crime.  Which there wasn't.  Hence we suppress the guns, drugs and pills the officers subsequently find.

But it's a messed up inquiry.  Because I wouldn't feel free -- most reasonable people wouldn't feel free -- to leave with a lot less.  Even just cops coming up to you in your car at 2:00 a.m., no floodlights or anything.  Are you really going to just drive away?  No way.  Because I suspect that virtually all of us would think that if we did, they're going to definitely come after us.  Which means we wouldn't feel free to leave.  Yet those facts are the very definition of a "consensual" police encounter to which the Fourth Amendment doesn't apply.

Making the Fourth Amendment test depend on whether a reasonable person would feel free to leave just seems silly.  Because no one seems free to leave.  Even when, in fact, they are.

Plus, the only ones who actually "know" whether they're free to leave are likely to be limited to lawyers, law professors, or (other) hardened criminals.  So it seems incredibly artificial to decide whether there's a seizure based upon what a totally uninformed person would perceive based upon a set of facts in which the practical realities almost always militate in favor of sitting tight once the police approach you.

I'm thinking that maybe the right approach would be a Miranda-type thing.  Maybe what we want to say is that a ton of police encounters are presumptively detentions -- something that reflects the actual reality of what most people feel -- unless the police proactively say something like "You're free to leave if you'd like, but [if you want to talk to me, blah blah blah] . . . ."  There'd be a lot of upside to such a rule.  That way you'd know whether you were, in fact, free to leave.  And could actualize your desires if you'd like.  It'd also avoid the dangers -- life-risking, in some circumstances -- of someone thinking that they're free to leave when the police take a different perspective.  We'll basically just assume that in most police encounters, other than the most obviously benign, someone is not free to leave unless the police tell 'em otherwise.  (Now, if they leave anyway, and there's no reasonable suspicion, that's fine, we can't validly arrest 'em.  But letting them know the scoop in advance seems like a valuable -- and easily obtainable -- objective.)

The people here seem to me like they were, in fact, free to leave, and had they left, I'd have been fine with that.  Maybe a brighter-line rule would both make cases like this easier to adjudicate as well as have substantial real-world advantages to boot.

Friday, June 07, 2019

People v. Smalling (App. Div. Sup. Ct. - June 7, 2019)

On the "low level litigation" front, here's a neat little published opinion from the Appellate Division of the Superior Court.  It holds that restitution is mandatory even for infractions (e.g., traffic tickets).

The defendant here pled guilty to having her pit bull kill a service dog, the result of which was a fine of $157.  But the owner of the dog who was killed then demanded restitution, which the trial court (a temporary judge) denied, saying that the owner could sue civilly if she wanted, but couldn't obtain a restitution order in a case involving an infraction.

But the Appellate Division disagreed.  It may be an infraction, but it's still a crime.  And restitution is mandatory in all criminal cases.

So it's going to end up being a lot more than $157.  (Plus, unlike the judgment in a civil suit, an order for restitution likely isn't covered by one's homeowners policy.)

One final note.  It's rare that the order of a temporary judge (a "pro tem") is made the subject of a published opinion, so I looked up the judge at issue, who's listed as Andrew K. Kim.  To my surprise, there's no lawyer or judge in California listed with that name; the closest you get is a "Peter Andrew Kim," which I'm fairly confident is someone else.  So I contacted Mr. Google, and discovered that there is a lawyer listed with that name, but in a way I'd never seen before.  The State Bar's records for Ki Hyon Kim list his "aka" as Andrew Kim, and he works at the "Law Office of Andrew K Kim."  So I assume that's him.  I've just never seen an a.k.a. in an official Bar record before.  Learn something new every day.

Thursday, June 06, 2019

Bergelectric Corp. v. Secretary of Labor (9th Cir. - June 6, 2019)

The $3000 question in this opinion is whether solar panels are "roofing materials [or] equipment."  If they are, then installing those panels is subject to a certain set of OSHA rules, which the contractor here followed, and the $3000 fine is invalid.  But if they aren't, then installing the panels is subject to a different set of rules, and the $3000 fine is valid.

The Ninth Circuit concludes that the plain meaning of "roofing materials [or] equipment" answers the question.  Nothing fancier or more complicated than that.

So?  Whatchathink?  Is a solar panel a type of roofing material or equipment?  After all, you're just as qualified as the Ninth Circuit to decide the common meaning of those terms.  What's your call?

On the one hand, solar panels are (as here) installed on the roof, typically by roofers.  On the other hand, the solar panels are typically installed on top of the roof, though they (partially) cover the roof as well.

Roofing materials or equipment?

The Ninth Circuit says no.  So the fine's valid.

To me, it's actually a close call.  Indeed, my initial impression was that solar panels are indeed a type of roofing equipment.  Maybe in part because when my wife and I looked into having solar panels installed on our own home, we were told (by the roofing contractor) that they'd have to cut out some or most of the clay roofing tiles to install the panels, which would then cover the resulting gaps.  That sounds a lot like a type of roofing, or at least roofing materials or equipment.  Even though it's on top of what we normally think of as the "main" roofing material.

But the Ninth Circuit decides otherwise.  Fair enough.  Maybe right, maybe wrong.  I'm not sure I'm going to spend all day thinking about a close case in which a whopping $3000 is at stake.

Though I do have a marginal critique about the definition employed by the per curiam opinion.

Recall that the question is what we mean by "roofing material" or "roofing equipment."  Those are nouns.  Yet the definition that the Ninth Circuit's opinion relies upon (1) is for the word "roof," not "roofing" (even though it's the latter word that's the one used in the regulation), and (2) is for the word "roof" as a verb, which is not how the word is used here.  (As a verb, "roof" does indeed mean to provide cover with a roof -- that's the "action" word -- but as a noun, the word "roof" can have a very different meaning.)

Now, I'm not enough of a grammarian to know for sure what you do when you turn a noun (roof) into an adjective (roofing) that describes a different noun (material or equipment).  Still.  Seems weird to use the verb definition when you're trying to figure out the meaning of a particular noun.

Anyway.  Close case.  I'm not sure the plain meaning of the relevant words is really all that plain.  Or why someone installing material on a roof (as the petitioner undeniably did here) isn't okay to follow the regular old rules for someone installing roofing equipment -- e.g., shingles -- since the risk of falling seems equivalent whether you're installing shingles or solar panels.  But what do I know?  I'm freaked out by being on a high roof in any event.

(I also wonder what the Ninth Circuit would do with solar shingles, which seem -- sort of like regular solar panels -- to provide both solar power as well as covering for the home.  Is that a different result, or the same thing?)

U.S. v. Brown (9th Cir. - June 5, 2019)

I suspect that the Supreme Court will reverse this opinion.

An (essentially) anonymous tipster at a YWCA calls the police and says that there's an African-American man with dreadlocks, a camouflage jacket and red shoes carrying a gun.  The police promptly spot someone who looks just like that in the area, and follow him in their vehicle for a couple of blocks.  When they turn on their siren, the individual runs away from them.  The police catch him and discover the gun and some drugs.

The Ninth Circuit holds that the stop was impermissible.  Not enough reasonable suspicion to conduct a Terry stop.

There's a lot in the opinion that makes sense; that having a gun is likely lawful in the state, that lots of innocent people (including, perhaps especially, minorities) distrust and may run from the police, etc.

But the standard for a Terry stop -- a "brief, investigative detention" -- is low.  And having a gun (in public, anyway) is a big deal, even if it might well be lawful in a number of circumstances.  Perhaps most importantly, running from the police is generally viewed as a big deal.  As a "flight" of some sort that may well suggest criminality.

I doubt that a majority of the Supreme Court would conclude as the panel does here.  And this may be precisely the type of case where the Court grants certiorari to spank down the "liberal" Ninth Circuit and it's "crazy" views about search-and-seizure jurisprudence.

Wednesday, June 05, 2019

Rudisill v. California Coastal Commission (Cal. Ct. App. - June 5, 2019)

You don't see many people get sanctioned for filing frivolous anti-SLAPP motion in the trial court.  When it happens, you don't see many such decisions get reversed.

But it happens here.

Worth mentioning on those rare occasions when it transpires.

McMillin Homes v. National Fire & Marine Ins. Co. (Cal. Ct. App. - June 5, 2019)

It's hard to argue that a decision about the applicability of a particular exclusion in an individual insurance policy as applied to a certain set of facts raises a critical issue the answer to which the universe (as opposed to the parties) awaits with bated breath.  Nonetheless, some of those cases get published, and that's fine.

Today's opinion not only gets published, but gets published even after the parties settle the appeal and dismiss it.  The Court of Appeal says that it "elected to proceed with the opinion given because the appeal was fully briefed and raised important issues."  The truth, of course, is that the court had already drafted its 25-page opinion at the time of the dismissal, and (understandably) didn't feel like just throwing the thing away at that point.  (The two statements are not necessarily inconsistent.)  So it published the opinion regardless.  Even though, at that point, the parties didn't care.

Monday, June 03, 2019

U.S. v. Knotek (9th Cir. - June 3, 2019)

A lot of Ninth Circuit opinions involve kicking out non-citizens from the country.  Today's opinion, by contrast, involves kicking out a citizen; in particular, sending him over to the Czech Republic to be incarcerated.  Different from the usual fare.

It's an extradition opinion.  The relevant treaty -- like many of them -- says that the respective countries aren't required to extradite their own citizens.  But a fairly recent federal statute says that the President is authorized to send U.S. citizens away if s/he wants.  Does that work?

The Ninth Circuit -- like virtually all courts -- says "Yes."  Which is not surprising.  It's a pretty straightforward interpretation of the relevant textual provisions.

The complexity is an old Supreme Court opinion that held that an extradition treaty (like the one at issue here) that says that you're not required to extradite your own citizens doesn't itself authorize such extradition; that there needs to be something else.  Hence the issue.  The petitioner here says that the U.S. authorizing statute -- which post-dated both the treaty as well as the Supreme Court's holding -- is unconstitutional, since it wasn't approved by the Senate in the manner required by a treaty.  Not a frivolous argument.  But one that the majority, like most courts, rejects.

So the 62-year old U.S. citizen here gets sent to the Czech Republic to serve a four-year sentence for a not extraordinarily serious property crime (attempted economic extortion).  Which isn't awesome.  Though if you don't want to serve time in a Czech prison, maybe don't go to that country and commit a crime there.

Friday, May 31, 2019

Longview Int'l v. Stirling (Cal. Ct. App. - May 31, 2019)

Who says you can't cogently and comprehensively resolve a civil appeal in less than five and a half double-spaced pages?!  Justice Grover can.

Thursday, May 30, 2019

In Re Southern California Gas Leak Cases (Cal. Supreme Ct. - May 30, 2019)

The California Supreme Court has been -- and, occasionally, still is -- at the forefront of modern torts jurisprudence.

But there's a reason why today's opinion is unanimous.  And doesn't expand tort liability one iota.

I wanted to quote from one or two paragraphs of Justice Cuellar's opinion to identify just why the Court doesn't allow businesses who were clearly damaged by the Southern California gas leaks -- but that nonetheless did not suffer actual "personal injury" or "property damage" -- to sue for the profits they undeniably lost from the thing.  The problem is that every single paragraph is just so darn good, it's hard to isolate just one or two.  So I'm going to make you read the whole shebang.

It's a folky, policy-centered, articulate, awesomely crafted decision.  Beautiful, really.

Were I able to write a tenth as well, I'd be a happy man. 

U.S. v. Graves (9th Cir. - May 30, 2019)

There's little doubt that the Ninth Circuit gets this one right as a matter of legal doctrine.  The district court thought that a life sentence was mandatory given the defendant's prior offenses, but that's not in fact true.  So a remand's required.

The government says -- accurately -- that the district court would have sentenced the defendant to a life sentence anyway.  Which we know because the district court expressly said so.

But the Ninth Circuit's response is spot on.   "Because the district court had already concluded that Graves was subject to a mandatory life sentence, he did not submit to a presentence interview or file a sentencing memorandum in an effort to obtain a lesser sentence because that effort would have been futile."  So, yep, a remand is the appropriate response.

Now, will Judge Sabraw give the defendant a life sentence once the case gets back to him?  I'm quite confident he will.  (At least if the recently-passed First Step Act doesn't apply.)

But going through the motions is an important part of the process.  Particularly when you're making someone spend the rest of his life in prison.

Tuesday, May 28, 2019

Jozefowicz v. Allstate Ins. Co. (Cal. Ct. App. - May 28, 2019)

There are a plethora of legal subjects about which I know a lot.  The law of negotiable instruments is not one of them.  Do I write (and cash) checks?  Sure.  Do I actually know the rules about them?  Not really.  Not in any legal sense, anyway.

But today's opinion sheds some light on the topic.  I did not know, for example, that you could file an independent action against someone who wrote you a check if you end of losing the check (at least in California).  That's super helpful to know.  If only because I'm  confident that I've lost checks before, and will lose them again.  Sure, if they're nice, the person who wrote the check will probably send you a replacement.  But not everyone is nice.

There are more details about this particular statutory provision in the opinion.  Details that include why the recipient of the check here doesn't end up getting paid.

But for your prototypical "lost check," fear not.  You can get it back.

Good to know.

Thursday, May 23, 2019

People v. Astorga-Lider (Cal. Ct. App. - May 22, 2019)

I'm glad there are cases (and procedures) like this one.

Criminal Defendant fraudulently gets Victim to sign various mortgage documents by pretending that they're something else, and funnels the money to herself.  She steals several million dollars that way.  She ultimately pleads guilty and is sentenced to 11 years is prison.

There's a rule that says that, as part of a criminal proceeding, the trial court is allowed to declare false or forged documents to be precisely that.  Thankfully.  So the trial court does so.  But the adversely affected lender (Deo) appeals, saying that you can't do that in a criminal case -- that it's a civil matter (and that the civil rule is different).

But it seems to me that you can indeed short circuit things when you've already resolved the relevant criminal case.  I'm not entirely sure I'm super excited about affecting third party rights through such a procedure (like here).  But it seems at least tolerable.  And if we already know that someone's been criminally tricked into signing a document, more than likely, it seems like you're entitled to get out of the thing.

Without having to go through a year or two of expensive litigation.

People v. Erskine (Cal. Supreme Ct. - May 23, 2019)

It's a case from San Diego, and involves two boys -- nine-year old Jonathan, and his brother, thirteen-year old Charles -- who went out on a bike ride and never returned.  So it touches a fair piece close to home for me.  Their killer was Scott Erskine.  He's sentenced to death.  And the California Supreme Court unanimously affirms.

It's not hard to see why.  When you read all the things that Mr. Erskine has done, it's hard to think of a more fitting candidate for the death penalty.  This is not one of those cases where you wonder why this particular person was sentenced to death but others with similar crimes are spared that fate.

I know that Mr. Erskine will almost certainly not in fact be executed by the state.  But you definitely see why that was his sentence.  And why many would prefer that it be carried out.

Wednesday, May 22, 2019

Shalabi v. Fontana (Cal. Ct. App. - May 22, 2019)

Rarely do you see the Court of Appeal refuse to following a controlling decision from the California Supreme Court that's directly on point and that has no intervening precedent to undercut it.

Yet it happens today.

Sure, the Court of Appeal doesn't expressly say it's refusing to follow controlling precedent.  But trust me.  That's exactly what it's doing.

Don't get me wrong.  I totally understand why the Court of Appeal is doing what it does.  Because the California Supreme Court;s holding was definitely wrong.  So I get why you'd want to ignore it.

Still.  We do have thing thing called vertical precedent.  So it's pretty bold to do what the Court of Appeal does today.

The issue is whether the statute of limitations has expired.  It's a lawsuit brought by someone who was a minor at the time of the incident, so that statute only starts running on his 18th birthday.  He turned 18 on December 3, 2011.  He filed suit exactly two years later, on December 3, 2013.  Is that timely?  (The statute of limitations for this action is two years.)

The Court of Appeal says:  Yes.  You've got two years, and you filed on the last day.  You're good to go.

Which, on the merits, is right.

With one small problem.

There's a California Supreme Court case in 1884 that squarely says exactly the opposite.  On identical facts.  Seriously.  The minor there turned 21 (the relevant age at the time) on April 11, 1876, and filed suit exactly five years (the relevant limitations period) later, on April 11, 1881.  You can't get more on all fours than that.  Yet the California Supreme Court held -- unanimously, no less -- that the suit was time-barred.  On the theory -- expressed concisely, in a single paragraph -- that since the minor was no longer a minor "on the first minute" of his birthday, filing on his birthday (presumably after 12:01 a.m.) was outside the limitations period.

Just like in today's case.

There's no way to get around that 1884 opinion.  (It's Ganal v. Soher, but I can't find a publicly available link; sorry).  It's the same case.  If it's right, today's opinion by the Court of Appeal is wrong.

The Court of Appeal has an answer, of course.  It says that the relevant principle -- and it's right on this -- comes from Section 12 of the California Civil Procedure Code, which says that in calculating time, you exclude the first day, but include the last.  Which makes filing on the exact day of your birthday timely.

True.  That's indeed what it says.

But Section 12 has existed, unchanged, since 1872.  The same was true in 1884.  Yet that case came out the other way.  Both cases cannot be right.  They cannot be reconciled.

The Court of Appeal insists that since the 1884 case didn't expressly talk about Section 12, it's okay to ignore it, since cases don't stand for propositions they don't discuss.  But that seems fairly weak tea to me, at least for cases that (like here) are squarely on all fours, and on identical facts.  I mean, it's also true that the plaintiff's first name in the 1884 case was Henry, whereas the plaintiff's first name here is Luis.  Distinction without a difference.  Cases that are irreconcilable remain so.

Indeed, if you were desperate to distinguish the two cases, there seems to me a better way to go than the way the Court of Appeal went anyway.  In the 1884 case, there was an express statute (Section 26 of the Civil Code) that said that you calculate dates "from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority."  But it appears that this statue was repealed by the Legislature in 1993.  So if you're really desperate to say that relevant authority has changed, I might be inclined to rely on that -- since the 1884 holding was indeed expressly based on that statute, so it's repeal seems fairly relevant.  And stronger, IMHO, than saying that you can ignore an on-point holding of the California Supreme Court because they forgot to mention a statute (Section 12) that existed both then and now.

But, again, I'm sympathetic.  The Court of Appeal is right.  This case is not, in fact, time-barred.  Just as the case in 1884 was not, in fact, time-barred.  Regardless of what the California Supreme Court said back then.

It's just that the Court of Appeal isn't technically allowed to say so.  Precedent and all.

In the end, here's what should happen.  The California Supreme Court should grant review in this case.  On it's own or otherwise.  And, in a quick, short, super easy opinion, overrule the 1884 case.  Wrong then, wrong now.  For the exact reasons the Court of Appeal articulates.

'Cause the California Supreme Court can do that.

And should.

Perez v. City of Roseville (9th Cir. - May 21, 2019)

In February 2018, Judge Reinhardt authors a majority opinion that reverses the district court's grant of summary judgment.  There's no dissent; Judge Tashima concurs in the result.

A judge on the Ninth Circuit calls for en banc review.  Judge Reinhardt then dies.  Judge Ikuta is drawn to replace him.

With its new member, the newly constituted panel completely reverses course, and affirms the grant of summary judgment.  The original member of the majority opinion (alongside Judge Reinhardt) dissents, saying not only that the original opinion was correct, but arguing that once an en banc call is made, only the en banc court should reverse the panel's opinion -- that it's unseemly that a judge's death should change things.  (Parenthetically, Judge Tashima never explains what made him change his mind from the original opinion, in which he concurred in the result, but now reaches an opposite conclusion.)

We'll see if the Ninth Circuit wants to take this en banc.  I suspect they'll be at least several votes to do so.

Monday, May 20, 2019

Murray v. BEJ Minerals (9th Cir. - May 20, 2019)

I discussed last year the Ninth Circuit's opinion about whether dinosaur fossils are "minerals" under relevant legal principles.  The Ninth Circuit took the case en banc, and today, it decides to let the Montana Supreme Court resolve the issue.

The fossils have been there for a while.  Resolving their ownership will take a little bit longer than anticipated.

Paxton v. Board of Administration (Cal. Ct. App. - May 20, 2019)

Government work is tough:

"The Department of Social Services is the state agency responsible for determining, through its Disability Determination Service Division, the medical eligibility of disabled Californians who are seeking federal Social Security benefits or state Medi-Cal benefits. Paxton is a medical consultant-psychiatrist who reviews claims for the federal program. . . . These consultants are expected to be at work for “core hours,” which are 9:00 a.m. to 11:30 a.m. and 1:30 p.m. to 2:30 p.m., and to average 40 hours per week, but otherwise they have flexibility in deciding when they work.

The Department of Social Services has suffered from periodic backlogs of disability review cases in the federal program. In 1993, the Department of Social Services received an exemption from the Department of Personnel Administration1 to temporarily pay overtime to consultants to deal with the pending cases even though they are salaried employees and such payments are inconsistent with the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.). The Department of Personnel Administration granted the temporary exemption with the expectation that the Department of Social Services would adopt an alternative to paying overtime.

In 1996, after a second request for an exemption was denied, the Department of Social Services proposed requiring consultants to work extra hours without compensation due to the extra workload and their classification as professional employees exempt from overtime and for whom “[t]he regular rate of pay is full compensation for all time that is required for the employee to perform the duties of the position.” The union representing the consultants rejected this proposal “out of hand.” The Department of Social Services and the union thereafter agreed to a voluntary bonus program “for processing additional workload.” Under the bonus program, consultants would be paid for each case closed above a certain threshold per week. . . .

Paxton participated in the bonus program from 2005 until it ended. During that period, consultants were paid $27 per case after 90 cases per week. The trial court found that “[t]he 90-case threshold was not hard to exceed in part because the threshold never was adjusted to account for increased efficiencies occasioned by computerization of the records and use of more experienced analysts.” Paxton and two retired consultants testified that they did not work more than 40 hours per week. Paxton was able to earn significant bonuses by spending an average of only five minutes to review a case.2 At this rate, he surpassed the weekly threshold for achieving a bonus in about a day and a half. As a result, he earned over $1.2 million in bonuses. In 2010, a particularly lucrative year, his monthly bonuses ranged from $16,821 to $39,501, more than three times his monthly salary. Paxton still works for the Department of Social Services."

Thursday, May 16, 2019

Columbo v. Kinkle, Rodiger & Spriggs (Cal. Ct. App. - May 16, 2019)

Sometimes, to briefly state the facts of the case is sufficient itself to state the appropriate holding:

"A vexatious litigant’s request to sue his attorneys for legal malpractice was denied by the superior court, as was his motion for reconsideration of that request. This court denied extraordinary relief. Undaunted, the vexatious litigant asked a different presiding judge to give him leave to file the identical legal malpractice complaint. This time, his request was granted and the current action was filed."

Yep.  That's enough to know how this one should (and does) come out.

"As a matter of both substantive legal doctrine and fundamental fairness, litigants are only entitled to one bite at the apple. But this vexatious litigant refuses to stop biting. We conclude the doctrine of res judicata precludes a litigant from filing successive prefiling requests, and therefore, we affirm the judgment."

Wednesday, May 15, 2019

County of Los Angeles v. Hoa (Cal. Ct. App. - May 15, 2019)

"Beginning in 2010, and as a result of a serious medical condition, Hoa took a number of extended medical leaves from work. In early 2013, Hoa believed, and her doctor reported, she was able to return to work with workplace accommodations. When Hoa reported for work, however, the County did not allow her to work. Instead, under Rule 9.07B, the County required Hoa to submit to a medical reevaluation, which she did in May 2013. . . .

A County clinical psychologist with Occupational Health Programs conducted the medical reevaluation. The psychologist determined Hoa suffered from a “chronic and persistent psychological condition” that had “caused her to miss an extraordinary amount of time from work over the past several years.” The psychologist also reported that, when at work and “despite numerous accommodations that the department has made (such as assigning [Hoa] only a small fraction of the caseload that other co-workers carry), [Hoa’s] performance has been unsatisfactory and punctuated by complaints from participants.” As a result of the May 2013 medical reevaluation, Occupational Health Programs determined “Hoa’s psychological condition impairs her ability to think clearly or carry-through with an activity. From a practical standpoint, she is unable to effectively interact with others or in situations that require her to perform even the most rudimentary tasks. Due to the severity of her illness, Ms. Hoa is unable to perform any of the essential job duties of her current, or any other, position presently and in the foreseeable future.”"

Thus began a series of hearings, motions and litigation that progressed for another six years, ending only today, when the Court of Appeal reverses the decision below and holds Ms. Hoa not entitled to any relief.

The public sector is often quite different than the private sector. 

Tuesday, May 14, 2019

County of Orange v. Seneca Ins. Co. (Cal. Ct. App. - May 14, 2019)

I'm glad the Court of Appeal published this opinion.  Not just because it's correct on the merits, as it surely is.  But because it implicitly publicizes a limitation on the enforcement of certain judgments that seems bizarre to me, and that I think the Legislature should abrogate.

A surety posts a bond for a criminal defendant, and the guy doesn't show.  So the bondsman is liable on the bond, and is ordered to pay the $100,000 bond.  The bondsman doesn't.  Simply doesn't pay.

Which, ordinarily, would lead to rapid enforcement action, etc.  But, here, for whatever reason, the County of Orange doesn't seem to be particularly worried.  Years go by with no attempt to force the surety to pay.

Here's the crazy (to me) thing:  Apparently there's a statute (Section 1306) that says that you can't enforce a judgment on a bond after two years.  (“The right to enforce a summary judgment entered against a bondsman pursuant to this section shall expire two years after the entry of the judgment.”)  Which just seems to me a crazy short period.  For a regular civil judgment, you've got like 10 years to enforce it.  Why the government should have a shorter time period -- for a debt arising in a criminal case, no less, with its corresponding public policy implications -- is simply beyond me.

Maybe there's a secret reason behind Section 1306 that I can't presently fathom.  But unless someone persuades me otherwise, were I a member of the Legislature, I'd almost definitely vote to amend Section 1306 to extend the time limit of two years to, like, ten.  (Unless, of course, the various sureties and their lobbyists paid me a substantial bribe; err, I mean, contributed to my campaign.)

Ultimately, here, the Court of Appeal enforces a different statue, which states -- totally reasonably, IMHO -- that if a surety has an unpaid judgment against it, it can't be a surety in the interim.  Totally fair.

But in the perfect (or at least better) world, the surety would be precluded from writing new bonds and have to pay the $100,000 it owes.  Rather than just change its name, get a new license, and then go back to writing bonds that it has no intention of ever paying.

Hopefully someone in the Legislature will eventually pick up on this.