Proof that San Diego isn't a paradise for everyone:
"The petition, as subsequently amended, alleged Kelly had a mental illness, including chronic paranoid schizophrenia. In the past, this caused her to have mood disturbances, delusions, hallucinations, memory impairment, emotional withdrawal and paranoia. Kelly was not under the care of a psychiatrist and was not taking medication for her illness. When Madison was born, Kelly tested presumptive positive for marijuana. Kelly later admitted smoking marijuana during pregnancy. Madison stopped breathing shortly after birth and was admitted to the hospital due to apnea and cyanosis. Approximately one month later, she was admitted to the hospital due to bronchiolitis. At the hospital, Kelly's boyfriend punched Kelly in the abdomen. Madison was exposed to violence when the boyfriend grabbed and pulled the chair on which Kelly was sitting, and Kelly tore the boyfriend's visitor's bracelet from his wrist. Kelly minimized the incident and refused to obtain a restraining order. Madison continued to experience episodes in which she stopped breathing and turned blue, but Kelly failed to report this to the pediatrician, in violation of Kelly's safety plan with the Agency. Kelly left Madison unattended at times when she cried, although Kelly knew Madison had previously stopped breathing while crying. Kelly has a history of methamphetamine use."
Oy vey.
Thursday, February 28, 2013
Wednesday, February 27, 2013
In Re Georges Marciano (9th Cir. - Feb. 27, 2013)
Both sides have decent arguments in this bankruptcy case. But I think that Judge Hurwitz has the better position, and that the panel accordingly gets the decision right notwithstanding Judge Ikuta's dissent.
Again, both sides have reasonable positions. The question is whether (three) creditors can force a debtor into involuntary bankruptcy when they've obtained judgments against that person but those (unstayed) judgments are on appeal. On the one hand, since no bond has been posted, the creditors can start collection efforts, so it makes sense to allow the creditors to file an involuntary petition to prevent one creditor (amongst many) from potentially getting all the debtor's money. On the other hand, since the judgments are on appeal, it's possible that they'll be vacated (or reduced), and so you might say that they're potentially subject to a "bona fide dispute" -- thereby requiring the bankruptcy court to take a look at the judgments and their viability on appeal. Judge Hurwitz takes the former position, whereas Judge Ikuta takes the latter position.
You can see why the issue is complicated. Add to the fact that, under Jduge Ikuta's view, you've got an Article I federal court prejudging the likely result of a state appeal -- with the resulting federalism implications -- and it gets even more complex.
Ultimately I think it makes sense to adopt Judge Hurwitz's per se rule, and to hold that since the claims have already been reduced to a judgment -- and one that can be currently enforced -- those contemporary claims are not subject to a bona fide dispute. It's true that sometimes we'll be wrong as a result of this conclusive presumption. That's always the case with per se rules. But empirically, we are unlikely to be wrong much, since (1) the vast majority of judgments get affirmed, and (2) even in those relatively rare cases when a judgment is reversed, they're not all likely to be reversed (since involuntary bankruptcy petitions require three or more creditors), and so the total amount of the unreversed claims are still likely to justify an involuntary petition. Moreover, even in those truly expectional cases where everything gets reversed, we can presumably unwind the bankruptcy petition in the same way we unwind normal unstayed judgments reversed on appeal that have already been collected in whole or in part.
Is that a perfect solution? No. There are still some harms to the debtor. But I'm persuaded that the alternative approach (articulated by Judge Ikuta) has more pervasive harms and transaction costs not only in the extraordinary case, but in every case, since each would require an individualized inquiry regarding the probability of the debtor's success on appeal.
So both sides have tolerable interpretations of the statutory text. But I think that, for policy as well as other reasons, Judge Hurwitz's view is the superior one.
Even if it does create a circuit split. Which is undeniably does.
Again, both sides have reasonable positions. The question is whether (three) creditors can force a debtor into involuntary bankruptcy when they've obtained judgments against that person but those (unstayed) judgments are on appeal. On the one hand, since no bond has been posted, the creditors can start collection efforts, so it makes sense to allow the creditors to file an involuntary petition to prevent one creditor (amongst many) from potentially getting all the debtor's money. On the other hand, since the judgments are on appeal, it's possible that they'll be vacated (or reduced), and so you might say that they're potentially subject to a "bona fide dispute" -- thereby requiring the bankruptcy court to take a look at the judgments and their viability on appeal. Judge Hurwitz takes the former position, whereas Judge Ikuta takes the latter position.
You can see why the issue is complicated. Add to the fact that, under Jduge Ikuta's view, you've got an Article I federal court prejudging the likely result of a state appeal -- with the resulting federalism implications -- and it gets even more complex.
Ultimately I think it makes sense to adopt Judge Hurwitz's per se rule, and to hold that since the claims have already been reduced to a judgment -- and one that can be currently enforced -- those contemporary claims are not subject to a bona fide dispute. It's true that sometimes we'll be wrong as a result of this conclusive presumption. That's always the case with per se rules. But empirically, we are unlikely to be wrong much, since (1) the vast majority of judgments get affirmed, and (2) even in those relatively rare cases when a judgment is reversed, they're not all likely to be reversed (since involuntary bankruptcy petitions require three or more creditors), and so the total amount of the unreversed claims are still likely to justify an involuntary petition. Moreover, even in those truly expectional cases where everything gets reversed, we can presumably unwind the bankruptcy petition in the same way we unwind normal unstayed judgments reversed on appeal that have already been collected in whole or in part.
Is that a perfect solution? No. There are still some harms to the debtor. But I'm persuaded that the alternative approach (articulated by Judge Ikuta) has more pervasive harms and transaction costs not only in the extraordinary case, but in every case, since each would require an individualized inquiry regarding the probability of the debtor's success on appeal.
So both sides have tolerable interpretations of the statutory text. But I think that, for policy as well as other reasons, Judge Hurwitz's view is the superior one.
Even if it does create a circuit split. Which is undeniably does.
Tuesday, February 26, 2013
Institute of Cetacean Research v. Sea Shepherd Conservation Society (9th Cir. - Feb. 25, 2013)
This Ninth Circuit opinion is certainly timely.
Chief Judge Kozinski calls the crew of the Sea Shepherd -- an anti-whaling ship featured on the Animal Planet television show Whale Wars -- "pirates." It's a strongly-worded opinion by Judge Kozinski, and the use of the term "pirate" is deliberate; the Ninth Circuit holds that the plaintiffs (Japanese whalers) have a cause of action against the Sea Shepherd Conservation Society under the Alien Tort Claims Act for piracy. The Ninth Circuit holds that it doesn't matter that the defendant's conduct is for environmental reasons; it's still violence directed at a ship on the high seas, and the advancement of environmental goals is (the Ninth Circuit holds) "private ends." So the panel not only reverses the district court's denial of plaintiff's request for a preliminary injunction, but also reassigns the case to a different district judge. (Judge Milan Smith dissents from the reassignment portion of the opinion.)
Meanwhile, on the same day the Ninth Circuit issued its opinion, half a world away, here's what happens. The Sea Shepherd collides with whaling ships, each side blaming the other. One thing's clear, however. The whalers are taking a more aggressive approach. Both on the seas as well as in the courtroom.
And what the Ninth Circuit says in its opinion won't tend to make them adopt a different approach.
P.S. - What do you think history will say about Judge Kozinski's opinion? Put to one side whether he's right about the law. It's a powerful opinion, full of language that excoriates the Sea Shepherd and its crew. One could, of course, have adopted a different style. Will history view the current treatment (read: killing) of large whales favorably? Or will, on the other side, history take a view akin to how we view the historical record of slavery? If the latter, in the future, will the Ninth Circuit's opinion in this case be read in the way we currently view lots of the older slavery and/or immigration cases (e.g., cases involving the Fugitive Slave Act)? My personal take is that we don't necessarily view those cases as "wrong" given the then-prevailing jurisprudence (putting to one side Dred Scott). But that we nonetheless view them as powerfully morally wrong. As well as take a dim view of lots of things the the authors of those opinions say in those opinion. Particularly when, as here, the author expresses a strong moral judgment -- one that turns out to be substantially different than the one that prevails 50 or 100 years hence.
Chief Judge Kozinski calls the crew of the Sea Shepherd -- an anti-whaling ship featured on the Animal Planet television show Whale Wars -- "pirates." It's a strongly-worded opinion by Judge Kozinski, and the use of the term "pirate" is deliberate; the Ninth Circuit holds that the plaintiffs (Japanese whalers) have a cause of action against the Sea Shepherd Conservation Society under the Alien Tort Claims Act for piracy. The Ninth Circuit holds that it doesn't matter that the defendant's conduct is for environmental reasons; it's still violence directed at a ship on the high seas, and the advancement of environmental goals is (the Ninth Circuit holds) "private ends." So the panel not only reverses the district court's denial of plaintiff's request for a preliminary injunction, but also reassigns the case to a different district judge. (Judge Milan Smith dissents from the reassignment portion of the opinion.)
Meanwhile, on the same day the Ninth Circuit issued its opinion, half a world away, here's what happens. The Sea Shepherd collides with whaling ships, each side blaming the other. One thing's clear, however. The whalers are taking a more aggressive approach. Both on the seas as well as in the courtroom.
And what the Ninth Circuit says in its opinion won't tend to make them adopt a different approach.
P.S. - What do you think history will say about Judge Kozinski's opinion? Put to one side whether he's right about the law. It's a powerful opinion, full of language that excoriates the Sea Shepherd and its crew. One could, of course, have adopted a different style. Will history view the current treatment (read: killing) of large whales favorably? Or will, on the other side, history take a view akin to how we view the historical record of slavery? If the latter, in the future, will the Ninth Circuit's opinion in this case be read in the way we currently view lots of the older slavery and/or immigration cases (e.g., cases involving the Fugitive Slave Act)? My personal take is that we don't necessarily view those cases as "wrong" given the then-prevailing jurisprudence (putting to one side Dred Scott). But that we nonetheless view them as powerfully morally wrong. As well as take a dim view of lots of things the the authors of those opinions say in those opinion. Particularly when, as here, the author expresses a strong moral judgment -- one that turns out to be substantially different than the one that prevails 50 or 100 years hence.
Monday, February 25, 2013
People v. Delgado (Cal. Ct. App. - Feb. 25, 2013)
Want to see how to write a persuasive -- and important -- opinion in five double-spaced pages?
Here you go.
It's really a masterful job by Justice Gilbert. It's got everything you need to know -- the facts, the law, the analysis -- and nothing you don't need to know.
Exceptionally impressive.
If brevity is the soul of wit, Justice Gilbert can serve as our modern day Polonius.
Here you go.
It's really a masterful job by Justice Gilbert. It's got everything you need to know -- the facts, the law, the analysis -- and nothing you don't need to know.
Exceptionally impressive.
If brevity is the soul of wit, Justice Gilbert can serve as our modern day Polonius.
Elija W. v. Superior Court (Cal. Ct. App. - Feb. 25, 2013)
At first I thought that maybe style was getting in the way of substance in this opinion. The writing is very chunky (i.e., does not flow very well), even for an opinion in the Court of Appeal. (That latter phrase is a slight slam on opinions that totally look like the bench-memoranda-slash-draft-dispositions that they once were, and is a description that's quite apt here.) Moreover, it and it takes Justice Woods a long time to get to the point. The reader does not really get to Justice Wood's actual analysis until the final two pages, which I found a little frustrating. As a result, it's possible that my reaction to the Court of Appeal's conclusion is perhaps based in part upon an emotive, rather than intellectual, reaction.
Nonetheless, on the merits, I have some real problems with the Court of Appeal's analysis, as well as its ultimate holding.
It's essentially a test case. Defense counsel wants the trial court to appoint an expert to evaluate the competency of a juvenile client who's been accused of arson. Since the trial courts in Los Angeles have been around this block before, they've screened and appointed a panel of approved experts for precisely this purpose. Efficiency, quality, etc.
But defense counsel knows -- presumably based upon prior communications with some of the experts -- that the experts on the panel feel compelled to disclose any instances of child abuse they might learn in the interviews, on the ground that they're mandatory reporters. Counsel also learns that the experts will also disclose any active threats by the interviewee to kill people, on the ground that if they fail to do so, there's liability under Tarasoff.
Counsel doesn't like that, and thinks that everything should be confidential. So he finds an expert off the panel who says that she wouldn't disclose anything like that even if she found out about it, and who says that she'd instead only report it to the attorney. So counsel moves to have the non-panel expert appointed.
Does the attorney have any reason to believe that the client will reveal anything like abuse or threats? No. Not at all. But it's nonetheless possible. And counsel doesn't like the fact that the L.A. panel experts do not concur with counsel's evaluation of their legal and ethical duties. So files a writ petition when the trial court denies the request to have the "keep it quiet" expert appointed.
The trial court thought -- correctly, in my view -- that this was all an "academic" dispute, since there was no reason whatsoever to believe that anything like that would happen here. But Justice Woods is right that just because there's no reason to think that a problem will transpire here doesn't mean it won't. As a result, there is standing, and the Court of Appeal is permitted to reach the merits if it wants. (Mind you, the fact that the petitioner here faces no real problem himself may perhaps be relevant to whether the Court of Appeal wants to grant an extraordinary writ, but I can at least see an argument that it nonetheless makes sense to review this issue now. Not that the Court of Appeal actually makes that argument, but if it did, I might potentially be persuaded by it.)
Which leads us to the merits. And that's my problem.
First, let's talk about child abuse. I had to read the opinion three times, and even then, I'm still not sure why -- or even how -- the opinion comes out the way it does. There's a whole lot of discussion as to whether the basic attorney-client privilege applies. But there's a specific statute on this point that's very simple, and even after reading the opinion multiple times, I'm at a loss to understand why the Court of Appeal doesn't think it applies. The statute says that "mandated reporters" have to report instances of child abuse. They have to do so even when they learn about child abuse in a confidential context. Moreover, the text of the statute expressly includes, amongst its numerous sections defining who counts as a mandatory reporter, psychologists and psychiatrists, including but not limited to those at issue here. So the statute reasonably clearly, in my view, requires disclosure, and trumps any competing privilege -- including the attorney/client privilege -- just like everyone concedes it trumps the analogous doctor-patient privilege.
What does the Court of Appeal say about that? I honestly can't tell. I see some discussion of whether an attorney is a mandatory reporter, which is not especially relevant to the issue. And I see general discourse into whether communication with third parties may be covered by the attorney-client privilege, but, again, a conclusion either way on this issue doesn't matter to whether the Child Abuse and Neglect Reporting Act trumps that privilege in the same way it undeniably trumps other privileges. So I can't understand how the Court can come to a conclusion that the statute doesn't apply.
Moreover -- and this is perhaps the weirdest part -- even after reading the opinion multiple times, I don't even know whether the court thinks the statute applies. Here's the money quote from the Court of Appeal that states its holding on this issue: "The conclusions of the therapists on the JCST panel that they would be compelled to reveal any disclosures made by petitioner are therefore incorrect. In this situation, as experts appointed to aid the defense, they are bound by the attorney-client privilege. Dr. Scarf's position that she need only report information about child abuse or neglect or threats of violence to petitioner's attorney is correct."
You can read this holding one of two ways. One way is to say that the Court of Appeal is holding that the statute doesn't apply. This seems wrong to me, but whatever. But if that's the case, why does the Court of Appeal hold -- in the final sentence of the quote -- that the appointed expert is required ("need only") report information child abuse or neglect "to petitioner's attorney"? There's a duty to disclose only if the mandatory reporting statute applies; otherwise, the expert need only report relevant information about the defense -- if even that -- to counsel. So, by finding a duty, it seems like the Court of Appeal thinks (like Dr. Scharf) that the statute applies, but that reporting to counsel ("alone") satisfies it.
But that's clearly wrong. The statute -- which I had to look up, because the Court of Appeal never quotes it -- expressly says that mandatory reporters have to file a report with the police and/or sheriff. That's Section 11169.5 of the Penal Code. Period. Reporting to an attorney indisputably doesn't count.
So, in the end, I'm at a loss to even explain the Court of Appeal's holding regarding the relevant duty, much less am I capable of figuring out coherently how they got there. Now, look, maybe I'm stupid. Maybe I am getting super old and incapable of reading opinions, or understanding cogent legal arguments. I can only say that, if that's the case, it's not for lack of practice. And that, perhaps, I'm not alone in finding the Court of Appeal's analysis here both substantively skimpy and -- at a minimum -- not nearly as persuasive as Justice Woods surely would have hoped.
Moreover, recall that the child abuse point is only half of the relevant inquiry. The other reason the panel experts said they'd disclose is because they have a Tarasoff duty to do so. Pursuant to an express decision of the California Supreme Court that says that if a psychologist or psychiatrist learns -- even pursuant to a privileged conversation -- the a patient actively plans on harming a third party, the therapist is required to disclose that fact under penalty of liability.
Given that opinion, it makes a lot of sense for the experts on the panel to say -- as they all did to defense counsel -- that if they did in fact learn about an active threat to harm someone, yeah, they'd be required to, and would, disclose that fact. Right?
Not according to the Court of Appeal. Which attempts to distinguish Tarasoff in two ways.
First, the Court of Appeal argues that its conclusion "is not at odds with Tarasoff, since in that case, the therapist was hired for therapeutic purposes, and was not a therapist hired to assist defense counsel." Well, yeah, that's a difference between the Supreme Court's case and this one. So's the fact that the therapist's name in Tarasoff was "Lawrence Moore" whereas here it's proposed to be "Rebecca Scharf". But why does that matter? There's no indication whatsoever in Tarasoff that the underlying civil duty depends on whether the psychiatrist is acting for "therapeutic" purposes or for evaluative ones. Moreover, the California Supreme Court's substantive analysis in Tarasoff seems powerfully applicable to both scenarios. The court in Tarasoff held that, for policy reasons, the values behind the underlying privilege do not outweigh the duty to prevent foreseeable harm (e.g., death) to another. Presumably that same weighing -- preventing death is more important that preserving confidentiality -- would apply equally in both therapeutic and non-therapeutic settings. So if the Court of Appeal is really making the somewhat revolutionary holding that therapists who are seeing patients but not "treating" them are no longer subject to Tarasoff, it needs to clearly say so, and also needs a lot more support for that result than the one-sentence distinction it offers here. I'm sure there would be plenty of applause from a number of therapists if the Court of Appeal wanted to make that step, but I'm not at all convinced that such a move either makes sense from a policy perspective or is consistent with California Supreme Court precedent.
Moreover, I'm not even sure that Justice Woods is really hanging the opinion on this point, or (perhaps) even means to make it. Since the opinion concludes with a section that says that Tarasoff isn't a privilege case anyway, but only a "civil liability" case. Thus, Justice Woods holds, it's not really relevant to whether a defendant should be entitled to retain an expert who feels like running whatever risk exists.
Now this, I think, is a distinction between the present case and Tarasoff. The latter undeniably dealt with civil liability, and the present case doesn't. So I agree with Justice Woods that we have to dig deeper.
But I'm still not convinced that this means that the result isn't the same. Yes, Tarasoff said that therapists have a duty backed up by civil liability. But that includes the first part of that sentence as well -- the duty part. Therapists have a duty to disclose. A duty backed up by law. In short, the California Supreme Court has clearly imposed a legal duty upon therapists to disclose threats of harm.
Now, it may well be that a defense counsel could find an expert who is willing to violate that legal duty. But, notwithstanding what the Court of Appeal here holds, it hardly seems an abuse of discretion for a trial court to refuse to appoint such an expert. That seems perfectly within a trial court's right. Alternately, a therapist might take a different view of his or her duty. If the expert was right, then I agree that it would be an abuse of discretion not to appoint the expert. But, for the reasons explained above, it seems to me that the expert here has reached a legal conclusion that is wrong, and it seems to me entirely permissible -- indeed, likely preferable -- for a trial court to take that into account in deciding whom to appoint. A trial court would not abuse its discretion by appointing only those experts who indicated that they would be willing to comply with the legal duties imposed upon them by the judiciary. How could anything make more sense than that?
It's not like I don't value confidentiality. I do. Seriously. A lot. I'd potentially be persuaded if someone tried to tell me that the Child Abuse and Neglect Reporting Act goes too far, or that Tarasoff was wrongly decided. I'd listen carefully if someone argued that, at least in a privileged setting, the values advanced by the relevant privilege -- the critical need for confidentiality in privileged communications -- outweigh society's interest in discovering child abuse or preventing third party harm. I'm not saying that I'd necessarily agree, but I think that there's more than a reasonable argument to be made along those lines. In short, I'm not at all entirely unsympathetic with a pro-privilege view.
But here's the thing: California doesn't agree. It passed a statute that, at least with respect to child abuse, has clearly made a contrary value judgment. The Legislature believes that confidentiality -- i.e., privilege -- does not trump the statute. And that statute, as well as its underlying value judgment, seems more than just a little bit applicable here. With respect to third party harm, the California Supreme Court made a similar policy choice, and imposed a legal duty to disclose. End of story. Sure, a defendant, his counsel, and even his appointed therapist might not like it. But it's the rule. The privilege does not outweigh.
So, in short (and that's using the word exceptionally loosely, as this this post is "short" only in the context that academic law reviews use that term), I think that the Court of Appeal not only gets this one wrong, but gets it badly wrong. And, at a minimum, that Justice Woods' opinion is not nearly as persuasively written as it would need to be in order to justify the fairly significant departure from existing practice embraced by the Court of Appeal here.
Nonetheless, on the merits, I have some real problems with the Court of Appeal's analysis, as well as its ultimate holding.
It's essentially a test case. Defense counsel wants the trial court to appoint an expert to evaluate the competency of a juvenile client who's been accused of arson. Since the trial courts in Los Angeles have been around this block before, they've screened and appointed a panel of approved experts for precisely this purpose. Efficiency, quality, etc.
But defense counsel knows -- presumably based upon prior communications with some of the experts -- that the experts on the panel feel compelled to disclose any instances of child abuse they might learn in the interviews, on the ground that they're mandatory reporters. Counsel also learns that the experts will also disclose any active threats by the interviewee to kill people, on the ground that if they fail to do so, there's liability under Tarasoff.
Counsel doesn't like that, and thinks that everything should be confidential. So he finds an expert off the panel who says that she wouldn't disclose anything like that even if she found out about it, and who says that she'd instead only report it to the attorney. So counsel moves to have the non-panel expert appointed.
Does the attorney have any reason to believe that the client will reveal anything like abuse or threats? No. Not at all. But it's nonetheless possible. And counsel doesn't like the fact that the L.A. panel experts do not concur with counsel's evaluation of their legal and ethical duties. So files a writ petition when the trial court denies the request to have the "keep it quiet" expert appointed.
The trial court thought -- correctly, in my view -- that this was all an "academic" dispute, since there was no reason whatsoever to believe that anything like that would happen here. But Justice Woods is right that just because there's no reason to think that a problem will transpire here doesn't mean it won't. As a result, there is standing, and the Court of Appeal is permitted to reach the merits if it wants. (Mind you, the fact that the petitioner here faces no real problem himself may perhaps be relevant to whether the Court of Appeal wants to grant an extraordinary writ, but I can at least see an argument that it nonetheless makes sense to review this issue now. Not that the Court of Appeal actually makes that argument, but if it did, I might potentially be persuaded by it.)
Which leads us to the merits. And that's my problem.
First, let's talk about child abuse. I had to read the opinion three times, and even then, I'm still not sure why -- or even how -- the opinion comes out the way it does. There's a whole lot of discussion as to whether the basic attorney-client privilege applies. But there's a specific statute on this point that's very simple, and even after reading the opinion multiple times, I'm at a loss to understand why the Court of Appeal doesn't think it applies. The statute says that "mandated reporters" have to report instances of child abuse. They have to do so even when they learn about child abuse in a confidential context. Moreover, the text of the statute expressly includes, amongst its numerous sections defining who counts as a mandatory reporter, psychologists and psychiatrists, including but not limited to those at issue here. So the statute reasonably clearly, in my view, requires disclosure, and trumps any competing privilege -- including the attorney/client privilege -- just like everyone concedes it trumps the analogous doctor-patient privilege.
What does the Court of Appeal say about that? I honestly can't tell. I see some discussion of whether an attorney is a mandatory reporter, which is not especially relevant to the issue. And I see general discourse into whether communication with third parties may be covered by the attorney-client privilege, but, again, a conclusion either way on this issue doesn't matter to whether the Child Abuse and Neglect Reporting Act trumps that privilege in the same way it undeniably trumps other privileges. So I can't understand how the Court can come to a conclusion that the statute doesn't apply.
Moreover -- and this is perhaps the weirdest part -- even after reading the opinion multiple times, I don't even know whether the court thinks the statute applies. Here's the money quote from the Court of Appeal that states its holding on this issue: "The conclusions of the therapists on the JCST panel that they would be compelled to reveal any disclosures made by petitioner are therefore incorrect. In this situation, as experts appointed to aid the defense, they are bound by the attorney-client privilege. Dr. Scarf's position that she need only report information about child abuse or neglect or threats of violence to petitioner's attorney is correct."
You can read this holding one of two ways. One way is to say that the Court of Appeal is holding that the statute doesn't apply. This seems wrong to me, but whatever. But if that's the case, why does the Court of Appeal hold -- in the final sentence of the quote -- that the appointed expert is required ("need only") report information child abuse or neglect "to petitioner's attorney"? There's a duty to disclose only if the mandatory reporting statute applies; otherwise, the expert need only report relevant information about the defense -- if even that -- to counsel. So, by finding a duty, it seems like the Court of Appeal thinks (like Dr. Scharf) that the statute applies, but that reporting to counsel ("alone") satisfies it.
But that's clearly wrong. The statute -- which I had to look up, because the Court of Appeal never quotes it -- expressly says that mandatory reporters have to file a report with the police and/or sheriff. That's Section 11169.5 of the Penal Code. Period. Reporting to an attorney indisputably doesn't count.
So, in the end, I'm at a loss to even explain the Court of Appeal's holding regarding the relevant duty, much less am I capable of figuring out coherently how they got there. Now, look, maybe I'm stupid. Maybe I am getting super old and incapable of reading opinions, or understanding cogent legal arguments. I can only say that, if that's the case, it's not for lack of practice. And that, perhaps, I'm not alone in finding the Court of Appeal's analysis here both substantively skimpy and -- at a minimum -- not nearly as persuasive as Justice Woods surely would have hoped.
Moreover, recall that the child abuse point is only half of the relevant inquiry. The other reason the panel experts said they'd disclose is because they have a Tarasoff duty to do so. Pursuant to an express decision of the California Supreme Court that says that if a psychologist or psychiatrist learns -- even pursuant to a privileged conversation -- the a patient actively plans on harming a third party, the therapist is required to disclose that fact under penalty of liability.
Given that opinion, it makes a lot of sense for the experts on the panel to say -- as they all did to defense counsel -- that if they did in fact learn about an active threat to harm someone, yeah, they'd be required to, and would, disclose that fact. Right?
Not according to the Court of Appeal. Which attempts to distinguish Tarasoff in two ways.
First, the Court of Appeal argues that its conclusion "is not at odds with Tarasoff, since in that case, the therapist was hired for therapeutic purposes, and was not a therapist hired to assist defense counsel." Well, yeah, that's a difference between the Supreme Court's case and this one. So's the fact that the therapist's name in Tarasoff was "Lawrence Moore" whereas here it's proposed to be "Rebecca Scharf". But why does that matter? There's no indication whatsoever in Tarasoff that the underlying civil duty depends on whether the psychiatrist is acting for "therapeutic" purposes or for evaluative ones. Moreover, the California Supreme Court's substantive analysis in Tarasoff seems powerfully applicable to both scenarios. The court in Tarasoff held that, for policy reasons, the values behind the underlying privilege do not outweigh the duty to prevent foreseeable harm (e.g., death) to another. Presumably that same weighing -- preventing death is more important that preserving confidentiality -- would apply equally in both therapeutic and non-therapeutic settings. So if the Court of Appeal is really making the somewhat revolutionary holding that therapists who are seeing patients but not "treating" them are no longer subject to Tarasoff, it needs to clearly say so, and also needs a lot more support for that result than the one-sentence distinction it offers here. I'm sure there would be plenty of applause from a number of therapists if the Court of Appeal wanted to make that step, but I'm not at all convinced that such a move either makes sense from a policy perspective or is consistent with California Supreme Court precedent.
Moreover, I'm not even sure that Justice Woods is really hanging the opinion on this point, or (perhaps) even means to make it. Since the opinion concludes with a section that says that Tarasoff isn't a privilege case anyway, but only a "civil liability" case. Thus, Justice Woods holds, it's not really relevant to whether a defendant should be entitled to retain an expert who feels like running whatever risk exists.
Now this, I think, is a distinction between the present case and Tarasoff. The latter undeniably dealt with civil liability, and the present case doesn't. So I agree with Justice Woods that we have to dig deeper.
But I'm still not convinced that this means that the result isn't the same. Yes, Tarasoff said that therapists have a duty backed up by civil liability. But that includes the first part of that sentence as well -- the duty part. Therapists have a duty to disclose. A duty backed up by law. In short, the California Supreme Court has clearly imposed a legal duty upon therapists to disclose threats of harm.
Now, it may well be that a defense counsel could find an expert who is willing to violate that legal duty. But, notwithstanding what the Court of Appeal here holds, it hardly seems an abuse of discretion for a trial court to refuse to appoint such an expert. That seems perfectly within a trial court's right. Alternately, a therapist might take a different view of his or her duty. If the expert was right, then I agree that it would be an abuse of discretion not to appoint the expert. But, for the reasons explained above, it seems to me that the expert here has reached a legal conclusion that is wrong, and it seems to me entirely permissible -- indeed, likely preferable -- for a trial court to take that into account in deciding whom to appoint. A trial court would not abuse its discretion by appointing only those experts who indicated that they would be willing to comply with the legal duties imposed upon them by the judiciary. How could anything make more sense than that?
It's not like I don't value confidentiality. I do. Seriously. A lot. I'd potentially be persuaded if someone tried to tell me that the Child Abuse and Neglect Reporting Act goes too far, or that Tarasoff was wrongly decided. I'd listen carefully if someone argued that, at least in a privileged setting, the values advanced by the relevant privilege -- the critical need for confidentiality in privileged communications -- outweigh society's interest in discovering child abuse or preventing third party harm. I'm not saying that I'd necessarily agree, but I think that there's more than a reasonable argument to be made along those lines. In short, I'm not at all entirely unsympathetic with a pro-privilege view.
But here's the thing: California doesn't agree. It passed a statute that, at least with respect to child abuse, has clearly made a contrary value judgment. The Legislature believes that confidentiality -- i.e., privilege -- does not trump the statute. And that statute, as well as its underlying value judgment, seems more than just a little bit applicable here. With respect to third party harm, the California Supreme Court made a similar policy choice, and imposed a legal duty to disclose. End of story. Sure, a defendant, his counsel, and even his appointed therapist might not like it. But it's the rule. The privilege does not outweigh.
So, in short (and that's using the word exceptionally loosely, as this this post is "short" only in the context that academic law reviews use that term), I think that the Court of Appeal not only gets this one wrong, but gets it badly wrong. And, at a minimum, that Justice Woods' opinion is not nearly as persuasively written as it would need to be in order to justify the fairly significant departure from existing practice embraced by the Court of Appeal here.
Thursday, February 21, 2013
Schmeer v. County of Los Angeles (Cal. Ct. App. - Feb. 21, 2013)
The Supreme Court says that Obamacare entails a "tax". Which it surely does (at least in part). By contrast, the decision by Los Angeles to ban plastic bags and to charge ten cents for every paper bag a consumer decides to get at a store is not a "tax" -- and hence does not require voter approval.
Which also makes sense. At least when one realizes that the alleged "tax" revenues don't go to the state (and are instead retained by the store) and used exclusively to provide the paper bags voluntarily requested by the consumer, alongside any consumer information or other promotion of reusable bags performed by retailer.
So holds the Court of Appeal.
The plastic bag industry may not like that result. Maybe consumers won't either. (Or at least some of them.)
But environmentalists will. As will a variety of sea (and other) animals. And, if she has a soul, perhaps Planet Earth as well.
A small step. But one worth taking. Even without direct taxpayer approval. (Plus, if you don't like the policy, you can always vote out the relevant representatives.)
Which also makes sense. At least when one realizes that the alleged "tax" revenues don't go to the state (and are instead retained by the store) and used exclusively to provide the paper bags voluntarily requested by the consumer, alongside any consumer information or other promotion of reusable bags performed by retailer.
So holds the Court of Appeal.
The plastic bag industry may not like that result. Maybe consumers won't either. (Or at least some of them.)
But environmentalists will. As will a variety of sea (and other) animals. And, if she has a soul, perhaps Planet Earth as well.
A small step. But one worth taking. Even without direct taxpayer approval. (Plus, if you don't like the policy, you can always vote out the relevant representatives.)
Greb v. Diamond Int'l Corp. (Cal. Supreme Ct. - Feb. 21, 2013)
For a sense how scholarly publications used to play a role in the application and development of legal doctrine, check out this opinion.
The California Supreme Court discusses a wide variety of law review articles -- including but not limited to those written by students -- and how those publications shaped subsequent judicial and legislative decisions. An impressive story.
What's equally significant, however, are the dates of the publications that made a difference. Law review articles in 1928 and 1931. A student note in 1947. Law review comments in 1913 and 1949.
Academic publications used to matter. They were cited and relied upon not only by other scholars, but by the judiciary as well.
One need not look beyond this opinion -- which, amongst its couple of dozen or so citations, contains no discussion of any academic work published after the Korean War -- to reveal that the era of broad academic influence upon the judiciary has long since passed. Sadly.
There's perhaps some reason to hope for at least a partial comeback. The increasing availability of real-time and doctrinal commentary -- bloggers, online law reviews, etc. -- may grant courts access to the type of neutral academic discourse that has tended to disappear from academia. This assumes, of course, that lawyers and courts -- which are no longer extensively familiar with looking to academia for insight -- retain the desire to familiarize themselves with these sources.
The rise of information technology and the increasing sophistication of counsel has permitted lawyers and judges to develop for themselves many of the arguments that used to be generated by academia. At the same time, legal academia has become increasingly insular and removed from the real world. The resulting confluence results in opinions like this one. Which reflect the substantial historical use of scholarly publications but the absence of such commentary in contemporary jurisprudence.
A telling opinion.
The California Supreme Court discusses a wide variety of law review articles -- including but not limited to those written by students -- and how those publications shaped subsequent judicial and legislative decisions. An impressive story.
What's equally significant, however, are the dates of the publications that made a difference. Law review articles in 1928 and 1931. A student note in 1947. Law review comments in 1913 and 1949.
Academic publications used to matter. They were cited and relied upon not only by other scholars, but by the judiciary as well.
One need not look beyond this opinion -- which, amongst its couple of dozen or so citations, contains no discussion of any academic work published after the Korean War -- to reveal that the era of broad academic influence upon the judiciary has long since passed. Sadly.
There's perhaps some reason to hope for at least a partial comeback. The increasing availability of real-time and doctrinal commentary -- bloggers, online law reviews, etc. -- may grant courts access to the type of neutral academic discourse that has tended to disappear from academia. This assumes, of course, that lawyers and courts -- which are no longer extensively familiar with looking to academia for insight -- retain the desire to familiarize themselves with these sources.
The rise of information technology and the increasing sophistication of counsel has permitted lawyers and judges to develop for themselves many of the arguments that used to be generated by academia. At the same time, legal academia has become increasingly insular and removed from the real world. The resulting confluence results in opinions like this one. Which reflect the substantial historical use of scholarly publications but the absence of such commentary in contemporary jurisprudence.
A telling opinion.
Wednesday, February 20, 2013
Proctor v. Vishay Tech. (Cal. Ct. App. - Feb. 19, 2013)
Think back for a moment to those heady days during your first year of law school, when you learned all about res judicata. It was almost certainly a difficult subject, it's important, right?
Yes. Yes it is.
Eight years of litigation, and the ultimate result boils down to the proper scope of claim preclusion.
It's a tough subject, but it's often a vitally important one.
Yes. Yes it is.
Eight years of litigation, and the ultimate result boils down to the proper scope of claim preclusion.
It's a tough subject, but it's often a vitally important one.
Tuesday, February 19, 2013
Hartman v. California Dep't of Corrections (9th Cir. - Feb. 19, 2013)
Sometimes I think that prisoners are just messing with us. And I use the term "messing" even though a different word more immediately comes to mind.
Which maybe explains this case. In which the Ninth Circuit has to decide whether it's constitutional for the California Department of Corrections to rely upon volunteer and part-time chaplains to serve the religious needs of Wiccan inmates rather than hire a paid, full-time Wiccan chaplain.
You might initially think that I've erroneously linked to a fictional legal dispute from the Onion. But no. Sometimes truth is stranger than fiction.
Nor, I might add, is this a nutty pro se action filed by an incarcerated prisoner. Nope. Not only is there a lawyer on the side of the Wiccans, but an entire law firm. Jones Day.
Which makes me initially think that Jones Day might be messing with us as well.
My initial reaction to the lawsuit was the same as most people's. "Seriously?" I mean, sure, I get that prisons have to accommodate religious preferences. But my strong sense is that it's okay to rely upon part-time chaplains rather than full-time ones. Might not be perfect. But just fine.
The district court thought so as well. And, on that basis, dismissed the lawsuit.
But the Ninth Circuit reverses. At least in part.
The panel does a pretty good job of explaining why. You see, at least allegedly, there are more Wiccans at the Central California Women's Facility than there are Jews. Or Muslims. Or even Catholics.
(This might say something about the Wiccan religion, I might add, but I leave more complete elaboration upon that thought for another time. Apparently we're still putting lots of witches in prison.)
This might otherwise just be a statistical footnote. But plaintiffs say it's a constitutional violation of the Establishment Clause since the prison provides full-time, paid chaplains for adherents to those (allegedly) less numerous, more "mainstream" religions, but marginalizes Wiccans with volunteers and part-timers.
The Ninth Circuit says that if that's true -- and we're just deciding the case at the pleading stage -- that might perhaps be a constitutional violation. You can see why. Especially if, as is alleged, the prison has no objective criteria for deciding which particular religious groups get full-time chaplains.
Reading between the lines, I think the panel is pretty skeptical about whether what the plaintiffs allege is the case is actually true. In particular, in the end, I think the lawsuit might well be dismissed because while there may be more Wiccans at this particular prison -- hereinafter, "Witch Central" -- than Jews and/or Muslims, overall, that's not likely the case, and the prison could constitutionally decide to employ full-time chaplains only for those religions that have more numerous adherents on the whole.
But that's for a later stage. The merits. The Ninth Circuit decides that, for now, the Wiccans get to have their day in court.
So let the Wiccans rejoice. They get a nice present from the Ninth Circuit just three short weeks after that great Wiccan holiday, Imbolc.
Good times.
Which maybe explains this case. In which the Ninth Circuit has to decide whether it's constitutional for the California Department of Corrections to rely upon volunteer and part-time chaplains to serve the religious needs of Wiccan inmates rather than hire a paid, full-time Wiccan chaplain.
You might initially think that I've erroneously linked to a fictional legal dispute from the Onion. But no. Sometimes truth is stranger than fiction.
Nor, I might add, is this a nutty pro se action filed by an incarcerated prisoner. Nope. Not only is there a lawyer on the side of the Wiccans, but an entire law firm. Jones Day.
Which makes me initially think that Jones Day might be messing with us as well.
My initial reaction to the lawsuit was the same as most people's. "Seriously?" I mean, sure, I get that prisons have to accommodate religious preferences. But my strong sense is that it's okay to rely upon part-time chaplains rather than full-time ones. Might not be perfect. But just fine.
The district court thought so as well. And, on that basis, dismissed the lawsuit.
But the Ninth Circuit reverses. At least in part.
The panel does a pretty good job of explaining why. You see, at least allegedly, there are more Wiccans at the Central California Women's Facility than there are Jews. Or Muslims. Or even Catholics.
(This might say something about the Wiccan religion, I might add, but I leave more complete elaboration upon that thought for another time. Apparently we're still putting lots of witches in prison.)
This might otherwise just be a statistical footnote. But plaintiffs say it's a constitutional violation of the Establishment Clause since the prison provides full-time, paid chaplains for adherents to those (allegedly) less numerous, more "mainstream" religions, but marginalizes Wiccans with volunteers and part-timers.
The Ninth Circuit says that if that's true -- and we're just deciding the case at the pleading stage -- that might perhaps be a constitutional violation. You can see why. Especially if, as is alleged, the prison has no objective criteria for deciding which particular religious groups get full-time chaplains.
Reading between the lines, I think the panel is pretty skeptical about whether what the plaintiffs allege is the case is actually true. In particular, in the end, I think the lawsuit might well be dismissed because while there may be more Wiccans at this particular prison -- hereinafter, "Witch Central" -- than Jews and/or Muslims, overall, that's not likely the case, and the prison could constitutionally decide to employ full-time chaplains only for those religions that have more numerous adherents on the whole.
But that's for a later stage. The merits. The Ninth Circuit decides that, for now, the Wiccans get to have their day in court.
So let the Wiccans rejoice. They get a nice present from the Ninth Circuit just three short weeks after that great Wiccan holiday, Imbolc.
Good times.
Monday, February 18, 2013
People v. Diaz (Cal. Ct. App. - Feb. 6, 2013)
I guess I knew at some level of generality that the airbag computers recorded your speed and braking and the like and could thus be used by the police in a DUI-with-injury case (or similar cases). Which is a fancy way of saying that I sort of, generally knew a tiny bit about the concept, but with no real details.
After reading this opinion, I now realize (1) that those "airbag thingies" are called sensing diagnostic modules ("SDMs"), (2) that they're in pretty much every modern vehicle, (3) that they record a lot of detail about your driving, and (4) that the police download the SDM data -- and use it against you -- whenever they feel like it; i.e., whenever the crime is sufficiently major to justify the (relatively small) amount of effort required.
Diaz was convicted of involuntary manslaughter for killing an 18-year old while driving drunk, and she claims on appeal that the SDM data used against her at trial was obtained without a warrant and in violation of the Fourth Amendment. It's not a very sympathetic case in which to make this claim, both given the nature of the offense and the evidence against her. The Court of Appeal pretty much rejects her argument on every ground imaginable; on the merits, harmless error, etc.
You can see where Justice Hollenhorst is coming from. The police already get to "inspect" the "instrumentality" of a crime; e.g., the crashed vehicle. Downloading the SDM data isn't all that different than an inspection. You could (and Diaz's counsel does) analogize this to opening an enclosed container in the vehicle, which it's not clear the police can do. But since the SDM is actually part of the vehicle, you can see why the Court of Appeal reaches the result it does. (You similarly can see why the Court of Appeal property rejects the analogy to the Jones GPS case. In the former, there was a physical trespass to the vehicle in order to install the GPS device. There's no such trespass here, however, since the SDM is already installed and the crashed vehicle is already in the possession of the authorities.)
I will say, however, that I'm not sure why the police don't just get a warrant for this stuff. Which would be really easy to obtain, especially since there's no exigency at all (the police had the crashed vehicle for around a year). The Court of Appeal offers a nonfrivolous answer -- because they don't have to, pursuant to the instrumentality rule -- but that's somewhat tautological, and doesn't really explain why you'd extend the instrumentality to rule SDMs as opposed to limiting it to, say, a purely physical inspection of the property; e.g., looking for blood in the trunk or open beer cans in the front seat.
But in truth, I can't imagine that these warrants would ever really be denied. Moreover, since SDMs produce data that's hardly very private (speed, braking, etc.), I'm not really inclined to broaden the warrant requirement to cover this data. The police are going to get it anyway, it's not really useful for anything other than the prosecution, and adding another unnecessary layer to its receipt doesn't really seem all that necessary.
So I guess I can get on board for the result here. Although I do so with more caveats than -- and not nearly as enthusiastically as -- Justice Hollenhorst.
After reading this opinion, I now realize (1) that those "airbag thingies" are called sensing diagnostic modules ("SDMs"), (2) that they're in pretty much every modern vehicle, (3) that they record a lot of detail about your driving, and (4) that the police download the SDM data -- and use it against you -- whenever they feel like it; i.e., whenever the crime is sufficiently major to justify the (relatively small) amount of effort required.
Diaz was convicted of involuntary manslaughter for killing an 18-year old while driving drunk, and she claims on appeal that the SDM data used against her at trial was obtained without a warrant and in violation of the Fourth Amendment. It's not a very sympathetic case in which to make this claim, both given the nature of the offense and the evidence against her. The Court of Appeal pretty much rejects her argument on every ground imaginable; on the merits, harmless error, etc.
You can see where Justice Hollenhorst is coming from. The police already get to "inspect" the "instrumentality" of a crime; e.g., the crashed vehicle. Downloading the SDM data isn't all that different than an inspection. You could (and Diaz's counsel does) analogize this to opening an enclosed container in the vehicle, which it's not clear the police can do. But since the SDM is actually part of the vehicle, you can see why the Court of Appeal reaches the result it does. (You similarly can see why the Court of Appeal property rejects the analogy to the Jones GPS case. In the former, there was a physical trespass to the vehicle in order to install the GPS device. There's no such trespass here, however, since the SDM is already installed and the crashed vehicle is already in the possession of the authorities.)
I will say, however, that I'm not sure why the police don't just get a warrant for this stuff. Which would be really easy to obtain, especially since there's no exigency at all (the police had the crashed vehicle for around a year). The Court of Appeal offers a nonfrivolous answer -- because they don't have to, pursuant to the instrumentality rule -- but that's somewhat tautological, and doesn't really explain why you'd extend the instrumentality to rule SDMs as opposed to limiting it to, say, a purely physical inspection of the property; e.g., looking for blood in the trunk or open beer cans in the front seat.
But in truth, I can't imagine that these warrants would ever really be denied. Moreover, since SDMs produce data that's hardly very private (speed, braking, etc.), I'm not really inclined to broaden the warrant requirement to cover this data. The police are going to get it anyway, it's not really useful for anything other than the prosecution, and adding another unnecessary layer to its receipt doesn't really seem all that necessary.
So I guess I can get on board for the result here. Although I do so with more caveats than -- and not nearly as enthusiastically as -- Justice Hollenhorst.
Thursday, February 14, 2013
Aguayo v. Amaro (Cal. Ct. App. - Feb. 14, 2013)
Jesus Aguayo says that he's in the "business" of acquiring homes by adverse possession.
I'll let you read this case to decide whether or not that business is an exceptionally dirty one.
I'll let you read this case to decide whether or not that business is an exceptionally dirty one.
Wednesday, February 13, 2013
Silas v. Arden (Cal. Ct. App. - Jan. 28, 2013)
I'm glad that the Court of Appeal published this opinion. If only to make clear that it's no defense to a malicious prosecution action for an attorney to say: "Even if I knew or should have known that the cause of action I was asserting lacked merit, it was okay for me to refuse to drop it, because that's what zealous representation of a client requires."
You can say that. But you can also lose over a quarter million dollars as a result.
Like here.
You can say that. But you can also lose over a quarter million dollars as a result.
Like here.
Tuesday, February 12, 2013
Reichert v. State Farm Ins. (Cal. Ct. App. - Jan. 25, 2013)
Maybe one reason why I like reading Justice Bedsworth's opinions so much is because they sometimes sound like something that I would write. If I wrote well, anyway.
Justice Bedsworth expressly says in this opinion -- and it's a very nice thing to say -- that he will "not attempt to improve" on the trial judge's impressive decision below, and that as a result, "[t]he next seven paragraphs are excerpted almost verbatim from the trial judge's statement of facts." (Adding that "This was no phoned-in minute order." Nice.) You can nonetheless figure out where Justice Bedsworth adds an occasional editorial comment of his own. Regardless, check out the factual underpinnings of the appeal:
"In September 2007, plaintiffs Eric and Liz Reichert purchased a two-story home in Huntington Beach at 18341 Rain Circle, which sits in a designated flood zone. Shortly after closing escrow, plaintiffs hired Ben Cauthen (hereinafter “Architect”) to 3 design a substantial remodel of the home. Plaintiffs also contracted with Krecu Construction (hereinafter “Contractor”) to perform and/or oversee the project as the general. Plans for the remodel were submitted to the City of Huntington Beach for approval:
The first set depicted what amounted to a “substantial” remodel since it (1) improved the overall value of the property more than 50% and (2) modified more than 50% of the existing walls. Because of this, additional planning elements were triggered, including a City “in-fill” requirement that neighbors sign off on the placement of windows and a federal FEMA requirement that the ground floor be constructed above the base flood level (which in this instance was about 9 feet); since this triggered significant additional cost and headache (i.e., raising the house 9 feet and staggering windows based on neighbor preference), they went back to the drawing board.
The second set of plans was not too different from the original. One change was the designation of several existing walls that were to remain in place and become part of the new construction. By doing this, plaintiffs avoided the City‟s “in-fill” requirement. In addition, plaintiffs secured an independent appraisal of their property, which, compared to the revised plans, came in at under 50% improved value − escaping the FEMA flood zone issue. As it turns out, the revised plans had a value improvement of about 49.93%, which was just barely enough to get the project permitted.
The contractor handled the job through Travis Bond (“Bond”), the designated on-site project manager. During the demo phase (June/July 2008), a light bulb went on over Bond‟s head: the second set of plans – the one approved by the City – still called for rooms upstairs and downstairs to have 10-foot ceilings, but in order to get the City to sign off on the second set of plans, plaintiffs covenanted to leave in place several original, existing walls. The problem? Those original, existing walls supported 8-foot ceilings, not 10-foot. Ouch. [SM -- The addition of "Ouch" is awesome I've repeatedly use that same line. Like here (in a case involving State Farm, no less), here and here. Love it.]
Bond contacted the contractor and architect for direction, and was told to go ahead and tear down all the walls, including the specific walls designated to remain as part of the approved plans. Bond did as instructed, and brought the walls down. During the next City inspection (mid-August 2008), it was discovered that plaintiffs had exceeded the scope of the permit issued. By taking out the extra walls, the square footage and value of the project increased. Plaintiffs had only $300 of wiggleroom to stay under the 50% FEMA trigger, and putting in eight brand new walls clearly increased the value more than that. There was no question that removing those additional walls increased the linear footage enough to trigger the City‟s “in-fill” requirement. A “stop-work” order was issued, halting the project on the spot.
The contractor proposed a variance, but later learned that while the City could issue a variance from the FEMA requirement, doing so might cost the City its FEMA rating, leading to a widespread increase in the cost of flood insurance for every resident of the City living in a flood zone. The City expressed (informally) its unwillingness to bend the rule for the Reicherts at the risk of hurting every other Huntington Beach citizen. Plaintiffs never formally applied for the variance, as it was a foregone futility. Instead, they filed a civil action against the contractor and architect (2009-125917) and made a claim for insurance benefits from State Farm. The property (apparently the entire structure in progress) was demolished by order of the city at some undesignated time afterwards."
What a story. An entire home gets torn down.
I'm not sure what transpired with the lawsuit against the contractor and architect, but I know what went down with the claim against State Farm, which is the topic of the appeal. It went nowhere. For the reasons identified at length in both the trial court and the Court of Appeal's opinions.
So the lesson is clearly to be careful when you leave yourself only a little wiggle room. It may end up biting you.
Hard.
Justice Bedsworth expressly says in this opinion -- and it's a very nice thing to say -- that he will "not attempt to improve" on the trial judge's impressive decision below, and that as a result, "[t]he next seven paragraphs are excerpted almost verbatim from the trial judge's statement of facts." (Adding that "This was no phoned-in minute order." Nice.) You can nonetheless figure out where Justice Bedsworth adds an occasional editorial comment of his own. Regardless, check out the factual underpinnings of the appeal:
"In September 2007, plaintiffs Eric and Liz Reichert purchased a two-story home in Huntington Beach at 18341 Rain Circle, which sits in a designated flood zone. Shortly after closing escrow, plaintiffs hired Ben Cauthen (hereinafter “Architect”) to 3 design a substantial remodel of the home. Plaintiffs also contracted with Krecu Construction (hereinafter “Contractor”) to perform and/or oversee the project as the general. Plans for the remodel were submitted to the City of Huntington Beach for approval:
The first set depicted what amounted to a “substantial” remodel since it (1) improved the overall value of the property more than 50% and (2) modified more than 50% of the existing walls. Because of this, additional planning elements were triggered, including a City “in-fill” requirement that neighbors sign off on the placement of windows and a federal FEMA requirement that the ground floor be constructed above the base flood level (which in this instance was about 9 feet); since this triggered significant additional cost and headache (i.e., raising the house 9 feet and staggering windows based on neighbor preference), they went back to the drawing board.
The second set of plans was not too different from the original. One change was the designation of several existing walls that were to remain in place and become part of the new construction. By doing this, plaintiffs avoided the City‟s “in-fill” requirement. In addition, plaintiffs secured an independent appraisal of their property, which, compared to the revised plans, came in at under 50% improved value − escaping the FEMA flood zone issue. As it turns out, the revised plans had a value improvement of about 49.93%, which was just barely enough to get the project permitted.
The contractor handled the job through Travis Bond (“Bond”), the designated on-site project manager. During the demo phase (June/July 2008), a light bulb went on over Bond‟s head: the second set of plans – the one approved by the City – still called for rooms upstairs and downstairs to have 10-foot ceilings, but in order to get the City to sign off on the second set of plans, plaintiffs covenanted to leave in place several original, existing walls. The problem? Those original, existing walls supported 8-foot ceilings, not 10-foot. Ouch. [SM -- The addition of "Ouch" is awesome I've repeatedly use that same line. Like here (in a case involving State Farm, no less), here and here. Love it.]
Bond contacted the contractor and architect for direction, and was told to go ahead and tear down all the walls, including the specific walls designated to remain as part of the approved plans. Bond did as instructed, and brought the walls down. During the next City inspection (mid-August 2008), it was discovered that plaintiffs had exceeded the scope of the permit issued. By taking out the extra walls, the square footage and value of the project increased. Plaintiffs had only $300 of wiggleroom to stay under the 50% FEMA trigger, and putting in eight brand new walls clearly increased the value more than that. There was no question that removing those additional walls increased the linear footage enough to trigger the City‟s “in-fill” requirement. A “stop-work” order was issued, halting the project on the spot.
The contractor proposed a variance, but later learned that while the City could issue a variance from the FEMA requirement, doing so might cost the City its FEMA rating, leading to a widespread increase in the cost of flood insurance for every resident of the City living in a flood zone. The City expressed (informally) its unwillingness to bend the rule for the Reicherts at the risk of hurting every other Huntington Beach citizen. Plaintiffs never formally applied for the variance, as it was a foregone futility. Instead, they filed a civil action against the contractor and architect (2009-125917) and made a claim for insurance benefits from State Farm. The property (apparently the entire structure in progress) was demolished by order of the city at some undesignated time afterwards."
What a story. An entire home gets torn down.
I'm not sure what transpired with the lawsuit against the contractor and architect, but I know what went down with the claim against State Farm, which is the topic of the appeal. It went nowhere. For the reasons identified at length in both the trial court and the Court of Appeal's opinions.
So the lesson is clearly to be careful when you leave yourself only a little wiggle room. It may end up biting you.
Hard.
Monday, February 11, 2013
Lucky United Property Investments v. Lee (Cal. Ct. App. - Feb. 5, 2013)
Here's an opinion that addresses how you calculate interest on various post-judgment cost and fee awards. It's rendered in 2013.
The underlying lawsuit involved a property dispute, which then devolved into multiple competing malicious prosecution actions, anti-SLAPP motions, cost and fee awards, and various enforcement proceedings. The original fee award was for around $25,000. How long could the resulting disputes really take?
Let me answer that question this way: The original lawsuit was filed in the twentieth century.
Suffice it to say that the parties don't like each other. And are affirmatively interested in battling over pittances.
The underlying lawsuit involved a property dispute, which then devolved into multiple competing malicious prosecution actions, anti-SLAPP motions, cost and fee awards, and various enforcement proceedings. The original fee award was for around $25,000. How long could the resulting disputes really take?
Let me answer that question this way: The original lawsuit was filed in the twentieth century.
Suffice it to say that the parties don't like each other. And are affirmatively interested in battling over pittances.
Friday, February 08, 2013
Browne v. County of Tehama (Cal. Ct. App. - Feb. 6, 2013)
I can't necessarily see anything wrong with the legal analysis in this opinion. The Compassionate Use Act does indeed permit people do use marijuana for certain medicinal purposes. At the same time, it doesn't necessarily displace reasonable zoning regulations. So localities can still regulate, inter alia, the cultivation of marijuana -- as Tehama County has done here -- in reasonable ways, without being preempted by state law.
Mind you, the critical inquiry is whether those local regulations are indeed reasonable. Many, many localities have used zoning to essentially "zone out" all medical marijuana, and such ordinances do indeed conflict with the CUA. But the Court of Appeal holds that there's no such showing here, and hence rejects the petition. Reading the opinion, you can see why.
That said, I'll say this:
Tehama County has deliberately imposed quite strict regulations about the cultivation of marijuana. You can't grow more than a dozen plants unless it's over 20 (!) acres. There's an 100-foot setback requirement. You've got to surround the place with an opaque fence at least six feet high. You've got to register the place (and pay a fee), include with your registration a copy of the medical marijuana card for every patient, and potentially even have a notarized letter from the owner of the property. Oh, yeah. And you can't do any of the above within 1000 feet of any school, bus stop, church, park, etc. etc.
You can see why a county might impose such requirements. Perhaps for good reasons. Perhaps for bad ones too.
The one thing I'll add is the admittedly extralegal point that regardless of the motivation, when you wonder whether drug money is going to legitimate businesses or -- instead -- to illegal (often foreign) cartels that engage in violence, remember zoning regulations like these. The harder you make it for businesses to run a legal, legitimate operation, the more you funnel demand into extralegal avenues. And while zoning for strip clubs and the like generally work because it's very hard to run an "illegal" strip club, that definitely ain't true for running drugs. At all.
Food for thought, anyway.
Mind you, the critical inquiry is whether those local regulations are indeed reasonable. Many, many localities have used zoning to essentially "zone out" all medical marijuana, and such ordinances do indeed conflict with the CUA. But the Court of Appeal holds that there's no such showing here, and hence rejects the petition. Reading the opinion, you can see why.
That said, I'll say this:
Tehama County has deliberately imposed quite strict regulations about the cultivation of marijuana. You can't grow more than a dozen plants unless it's over 20 (!) acres. There's an 100-foot setback requirement. You've got to surround the place with an opaque fence at least six feet high. You've got to register the place (and pay a fee), include with your registration a copy of the medical marijuana card for every patient, and potentially even have a notarized letter from the owner of the property. Oh, yeah. And you can't do any of the above within 1000 feet of any school, bus stop, church, park, etc. etc.
You can see why a county might impose such requirements. Perhaps for good reasons. Perhaps for bad ones too.
The one thing I'll add is the admittedly extralegal point that regardless of the motivation, when you wonder whether drug money is going to legitimate businesses or -- instead -- to illegal (often foreign) cartels that engage in violence, remember zoning regulations like these. The harder you make it for businesses to run a legal, legitimate operation, the more you funnel demand into extralegal avenues. And while zoning for strip clubs and the like generally work because it's very hard to run an "illegal" strip club, that definitely ain't true for running drugs. At all.
Food for thought, anyway.
Thursday, February 07, 2013
Smith v. Hedgpeth (9th Cir. - Feb. 5, 2013)
It's an AEDPA state habeas case. The defendant brutally beat his wife in front of his two teenage daughters, leaving her in a hospital (or nursing home) for four months. The panel consists of Farris, Fernandez and Bybee. The district court denied habeas relief.
There's no chance the panel's going to reverse. And it doesn't. The judges don't even bother with oral argument.
No surprise. Even less of a surprise once one catches from the caption the judge in the district court was this guy.
There's no chance the panel's going to reverse. And it doesn't. The judges don't even bother with oral argument.
No surprise. Even less of a surprise once one catches from the caption the judge in the district court was this guy.
Wednesday, February 06, 2013
People v. Corrales (Cal. Ct. App. - Feb. 6, 2013)
Don't text while driving. Especially when you've got a baggie of meth in the car.
On the merits, the Court of Appeal gets this one exactly right. There was indeed a reasonable basis for the police officers to stop the defendant's car. Sure, they may not have "seen" him texting. His right hand was below the window to the car, after all. So we can't know for sure what he was doing down there.
But we all know what texting while driving looks like. Including the police. Corrales was looking down and up at something he was holding in his right hand. I can't draw you a precise picture of the events in words -- nor can the police in their testimony -- but I am absolutely confident that I (along with the police) can reasonably distinguish between someone who looks like they're texting with an unseen object in their right hand and someone who's, say, adjusting their crotch.
And we not only allow the police to pull over the former, but affirmatively want them to.
Silly argument. Right result.
Some things you can't precisely describe but nonetheless know 'em when you see 'em.
On the merits, the Court of Appeal gets this one exactly right. There was indeed a reasonable basis for the police officers to stop the defendant's car. Sure, they may not have "seen" him texting. His right hand was below the window to the car, after all. So we can't know for sure what he was doing down there.
But we all know what texting while driving looks like. Including the police. Corrales was looking down and up at something he was holding in his right hand. I can't draw you a precise picture of the events in words -- nor can the police in their testimony -- but I am absolutely confident that I (along with the police) can reasonably distinguish between someone who looks like they're texting with an unseen object in their right hand and someone who's, say, adjusting their crotch.
And we not only allow the police to pull over the former, but affirmatively want them to.
Silly argument. Right result.
Some things you can't precisely describe but nonetheless know 'em when you see 'em.
Correa-Rivera v. Holder (9th Cir. - Feb. 6, 2013)
Chief Judge Kozinski is very good at writing opinions that make other people look bad. Here's the latest example.
Though, to be honest, the BIA did most of the work for him.
(And not for the first time, I might add.)
Though, to be honest, the BIA did most of the work for him.
(And not for the first time, I might add.)
Tuesday, February 05, 2013
U.S. v. Preston (9th Cir. - Feb. 5, 2013)
When I read this opinion by Judge Farris (joined by Judge Bybee), it, seemed plausible. Sure, I could see some potential problems with the case. The alleged sexual abuse victim -- an eight-year old boy -- clearly made some stuff up. But as Judge Farris explained, that sometimes happens. Similarly, the police conducted a fairly aggressive interview, replete with lies, shaded stories, and lots of questions along the lines of "When did you stop beating your wife?" But that's fairly common too. I've seen a lot worse on television, and am sure a lot worse goes on in practice. If I were trying to get an alleged child molester to confess, I'm sure that I too would ask questions like "There are two types of people. Monsters who prey on people, and people who just make one-time mistakes. Which one are you?" Questions which allegedly make it easier for the suspect to feel "good" about confessing. Finally, I can see the problem with interviewing the defendant here. He's mentally disabled, with an IQ of 65. But those people commit crimes too, right? Gotta get them to confess as well.
So when I finish reading the majority opinion, my reaction is: Maybe. Maybe that's right. It's at least possible that Preston did the crime. He eventually confessed, after all. So maybe we're happy with locking him away.
Then I read Judge Noonan's dissent.
Wow.
It's not that Judge Noonan says anything factual that I didn't already know from reading the majority opinion. He doesn't. Everything's in there.
It's the way Judge Noonan puts it together.
Stunningly good.
When you get through reading Judge Noonan's dissent, you're not just less confident that justice has been done. You're also heavily persuaded -- or at least I am -- that Preston might actually be innocent. Or at least that to call him guilty beyond a reasonable doubt seems a massive stretch.
You've got little to no actual "evidence" that a crime occurred. Really all you have is the claim -- not even the sworn testimony -- of an eight-year old boy who we are certain made a ton of things up.
I particularly found powerful the stuff at the end of Judge Noonan's dissent. The stuff about how lots and lots of false confessions are the result of precisely the types of things that transpired here; in particular, the aggressive questioning of mentally disabled people. They're easy to confuse. They're very willing to follow the "lead" of authority figures. Especially when, as here, they're given two choices (i.e., "Are you a monster, or do you just want to say you're sorry") and elect the one that's the most palatable. Yes, a person of normal intelligence might "think outside the box" and understand that there's a third option. But that's less likely -- much less likely -- for someone with an IQ of 65.
Could Preston have actually done it? Yes. It's possible. Maybe the boy is telling the truth, albeit saddled between stories of monster trucks, police helicopters, the rape of his sister, 911 calls, jumps off the roof, and the killing of various robbers, all of which we know aren't true. After all, there was seemingly no reason for the boy to make up the initial story of the assault. So maybe that's true but the rest of it's fantasy.
But, man. Maybe not.
Read Justice Noonan's dissent. Impressive.
So when I finish reading the majority opinion, my reaction is: Maybe. Maybe that's right. It's at least possible that Preston did the crime. He eventually confessed, after all. So maybe we're happy with locking him away.
Then I read Judge Noonan's dissent.
Wow.
It's not that Judge Noonan says anything factual that I didn't already know from reading the majority opinion. He doesn't. Everything's in there.
It's the way Judge Noonan puts it together.
Stunningly good.
When you get through reading Judge Noonan's dissent, you're not just less confident that justice has been done. You're also heavily persuaded -- or at least I am -- that Preston might actually be innocent. Or at least that to call him guilty beyond a reasonable doubt seems a massive stretch.
You've got little to no actual "evidence" that a crime occurred. Really all you have is the claim -- not even the sworn testimony -- of an eight-year old boy who we are certain made a ton of things up.
I particularly found powerful the stuff at the end of Judge Noonan's dissent. The stuff about how lots and lots of false confessions are the result of precisely the types of things that transpired here; in particular, the aggressive questioning of mentally disabled people. They're easy to confuse. They're very willing to follow the "lead" of authority figures. Especially when, as here, they're given two choices (i.e., "Are you a monster, or do you just want to say you're sorry") and elect the one that's the most palatable. Yes, a person of normal intelligence might "think outside the box" and understand that there's a third option. But that's less likely -- much less likely -- for someone with an IQ of 65.
Could Preston have actually done it? Yes. It's possible. Maybe the boy is telling the truth, albeit saddled between stories of monster trucks, police helicopters, the rape of his sister, 911 calls, jumps off the roof, and the killing of various robbers, all of which we know aren't true. After all, there was seemingly no reason for the boy to make up the initial story of the assault. So maybe that's true but the rest of it's fantasy.
But, man. Maybe not.
Read Justice Noonan's dissent. Impressive.
People v. Delgado (Cal. Ct. App. - Feb. 5, 2013)
Sometimes statutes require courts to decide "medical" issues. Like this one. What's a "coma"?
The Court of Appeal answers the question. It's a Glasgow Coma Scale of 8 or less. Here, the victim had a score of 9. So it's not a coma, so there's not an extra five years.
I'll nonetheless say that it was still a terrible beating. Just terrible. So even though Delgado gets five years off his sentence, he still has to do 23+ years in prison.
Though take a look at what his co-defendant, Romero, did. Even worse. I don't know what Romero's sentence was. But 75 years would seem about right to me.
The Court of Appeal answers the question. It's a Glasgow Coma Scale of 8 or less. Here, the victim had a score of 9. So it's not a coma, so there's not an extra five years.
I'll nonetheless say that it was still a terrible beating. Just terrible. So even though Delgado gets five years off his sentence, he still has to do 23+ years in prison.
Though take a look at what his co-defendant, Romero, did. Even worse. I don't know what Romero's sentence was. But 75 years would seem about right to me.
Monday, February 04, 2013
People v. Whalen (Cal. Supreme Ct. - Feb. 4, 2013)
Read Justice Liu's concurring opinion in this one. He's absolutely right. The trial court clearly treated pro-death penalty jurors differently than anti-death penalty jurors, and tried valiently to rehabilitate the former while kicking off the latter. What transpired here is really striking.
None of which particularly helps the appellant, Daniel Whalen. Who wants the state to kill him and who will (likely) get his wish. Everyone on the Court agrees that his death sentence gets affirmed. Despite the conduct of the trial court below.
But it's still telling to look at what the trial court did. The next time you wonder whether some judges don't put a "thumb on the scale" even in high-profile criminal cases, remember this one.
P.S. - The majority opinion's worth a read as well. If only to see (1) what a long criminal history Mr. Whalen had, and how incredibly destructive drug addiction is for everyone involved (Whalen, the sex-for-drug trading Michelle Joe, etc.), and (2) how utterly senseless it was for Whalen to kill the victim -- Sherman Robbins -- who was an elderly diabetic and a veritable modern-day Mother Theresa, who welcomed "street people" into his home for food, a bath or rest. Leading to his death.
None of which particularly helps the appellant, Daniel Whalen. Who wants the state to kill him and who will (likely) get his wish. Everyone on the Court agrees that his death sentence gets affirmed. Despite the conduct of the trial court below.
But it's still telling to look at what the trial court did. The next time you wonder whether some judges don't put a "thumb on the scale" even in high-profile criminal cases, remember this one.
P.S. - The majority opinion's worth a read as well. If only to see (1) what a long criminal history Mr. Whalen had, and how incredibly destructive drug addiction is for everyone involved (Whalen, the sex-for-drug trading Michelle Joe, etc.), and (2) how utterly senseless it was for Whalen to kill the victim -- Sherman Robbins -- who was an elderly diabetic and a veritable modern-day Mother Theresa, who welcomed "street people" into his home for food, a bath or rest. Leading to his death.
Apple v. Superior Court (Cal. Supreme Ct. - Feb. 4, 2013)
The question is whether an online retailer -- here, Apple, at its iTune store -- can collect telephone numbers in connection with credit card sales. There's a specific statute that says you can't do that in California. But Apple says that the statute doesn't apply to online credit card transactions, and only applies to physical credit card transactions.
Plaintiff responds that that doesn't make any sense. That collecting phone numbers is unnecessary in both types of transactions, and that these transactions equally present the dangers that prompted the passage of the statute: namely, the retail collection of unnecessary data for marketing purposes. The statute is deliberately broad, plaintiff says, and nothing in the statute exempts online sales. Plus, the Legislature passed an amendment to the statute in 2011 that permitted pay-at-the-pump gas stations to collect ZIP codes, and the legislative history of that statute expressly talked about how the existing statute applied to online and brick-and-mortar retailers alike.
Its' a close opinion. 4-3. Justice Liu writes the majority opinion. One that's joined by, among others, the Chief Justice, Cantil-Sakauye.
They agree with Apple. The privacy statute doesn't apply to online retailers.
Plaintiff responds that that doesn't make any sense. That collecting phone numbers is unnecessary in both types of transactions, and that these transactions equally present the dangers that prompted the passage of the statute: namely, the retail collection of unnecessary data for marketing purposes. The statute is deliberately broad, plaintiff says, and nothing in the statute exempts online sales. Plus, the Legislature passed an amendment to the statute in 2011 that permitted pay-at-the-pump gas stations to collect ZIP codes, and the legislative history of that statute expressly talked about how the existing statute applied to online and brick-and-mortar retailers alike.
Its' a close opinion. 4-3. Justice Liu writes the majority opinion. One that's joined by, among others, the Chief Justice, Cantil-Sakauye.
They agree with Apple. The privacy statute doesn't apply to online retailers.
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