Friday, March 29, 2013

Collins v. Navistar (Cal. Ct. App. - March 29, 2013)

I'm not sure what to make of this case.

On the one hand, I agree that the jury instructions in the case seemed a bit confused.  That's perhaps not too surprising, since the case is an intersection of criminal conduct and civil products liability.  There are various jury instructions for each scenario, and they conflict (or are at least in tension), so I can understand why the Court of Appeal might think that the trial court got it wrong by giving the instructions that it did.  And, on that basis, reverse the jury's judgment in favor of the defendant and remand for a new trial.  Which is what the Court of Appeal indeed did.

But I'm nonetheless not at all certain that this is the right result.

The situation here involved a 15-year old child who threw a 2.5 pound piece of concrete at a tractor trailer that was driving on I-5.  The rock smashed through the windshield and hit the driver in the head, causing severe brain injuries to the driver.

That's a crime.  It's also a tort.  So there's no surprise that there's a subsequent civil lawsuit.

But the lawsuit here isn't against the boy or his parents.  It's against the manufacturer of the windshield.  Claiming that the windshield was defectively designed since it allowed a 2.5 pound piece of concrete to go through the windshield of a car driving on I-5.  The Court of Appeal says that's a potentially legitimate basis of liability.


Do I doubt that a manufacturer can create a windshield that withstands the massive forces that are created when a huge chunk of concrete gets thrown at it while the car is going at a high rate of speed?  Sure.  I can easily imagine armor plating.  I'm also confident that the plaintiff's expert is correct that if you use fancy (and presumably more expensive) polymers in the window, and then tilt the windshield back so that it stands less "upright," maybe even a two-and-a-half pound chunk of concrete will bounce off the windshield instead of smashing through it.

For this reason, the Court of Appeal holds that it's a straightforward products liability suit.  The only thing that matters is whether the design selected is superior, on a cost-benefit analysis, to the alternative design that they rejected that would have prevented the accident.

I'm not entirely persuaded.

It seems to me that there are certain types of events that take you out of the realm of cost-benefit analysis, and those things include unforeseeable events like the unexpected criminal conduct of a third party.  It's not that the Court of Appeal doesn't understand that principle.  It does.  But it responds that it's not applicable because the whole purpose of a windshield is to stop objects (including but not limited to rocks) from hitting the driver.  So since the defendant knows that's the object of the product, they've got a duty to stop rocks even in situations that are entirely unexpected.

I understand the argument.  It's got some facial appeal.  But I'm just not sure it's entirely right.

Imagine this hypothetical:  One day, due to quantum fluctuations, gravity along a section of I-5 is suddenly reversed, causing rocks on the side of the road to float into the air, and one of them smashes through a windshield.  On the Court of Appeal's view, there may well be liability there, despite the fact that no one could have possibly anticipated this event, because the whole point of windshields is to stop rocks.  Ditto if space aliens show up and start firing guns that shoot rocks at oncoming traffic.  Whole point of windshields is still to stop rocks.  Potential liability.

It just seems to me that the purpose of the product is not categorically dispositive and that there are some events that are sufficiently remote in terms of foreseeability that we do not (and should not) impose liability even if the harm therefrom could have been prevented were the product alternatively designed.  Yes, it's true, a windshield is designed to stop wind, bugs and even tiny rocks that fly off tires or bounce off the freeway from smashing you in the head.  Those are somewhat common events.  But a 2.5 pound rock deliberately thrown by a teenager?  That's something categorically different.  It doesn't happen every day.  Or even every year.  Which is, in part, why we sentenced the 15-year old thrower to 12 years in prison.  You don't anticipate that stuff.  You may know that, in theory, it might transpire.  Ditto for a 2.5 meteor coming down from space and hitting the windshield.  But it's sufficiently rare that we don't impose liability even if an alternative design would have prevented the harm.  As a matter of law.

For me, there's simply a qualitative difference between the type of tiny rocks that windshields are designed to stop and deliberately thrown "monster" rocks.  I get liability for the former.  But not the latter.  That's not sufficiently foreseeable.  As a result, we don't want post hoc cost-benefit balancing by a jury that might well be (understandably) sympathetic to a horribly injured plaintiff.  Ergo judgment as a matter of law.

My view, as is obvious, stands in sharp contrast to that of the Court of Appeal.  Which not only lets the suit go forward, but reverses a jury verdict in favor of the defendant.

Wholly apart from my disagreement as a matter of policy and tort principles, I'm also not sure that today's Court of Appeal opinion effectively distinguishes precedent.

There are, as you might imagine, lots of cases that involve unforeseeable events.  Including those in which, as here, the criminal act of a third party allegedly "breaks the chain of causation" as a matter of law.  One of the cases the Court of Appeal distinguishes is a 2004 opinion in which the California Supreme Court held that as a matter of law a daycare center couldn't be liable when a driver deliberately drove his car through a chain link fence surrounding the center and hit some children.  The Court of Appeal says that holding doesn't apply because it was a case of premises -- rather than products -- liability.  But why does that matter?  After all, the purpose of the fence, just like the windshield here, was in part to keep unwanted people and things out.  If, as plaintiffs contended in 2004, the fence could have been built more strongly and in a manner that was cost-benefit effective, why shouldn't there be liability there too?  Yes, the "type" of tort is different -- we give it a different name -- but this is a distinction without a difference.  The same reasoning should apply.

The same seems true for another case that the Court of Appeal distinguishes.  This one involved a motorist whose tire blew out, stranding her in a remote area, at which point someone came along and killed her.  In that case, the appellate court dismissed liability as a matter of law based upon the intervening criminal act of the third party.  That act caused the harm, despite the fact that the murder would surely have been prevented if the tire had been properly built.  How's that case any different?

The Court of Appeal says it's different because in that case "no physical harm was caused by the product itself" (i.e., the tire).  But the exact same is true here.  The windshield didn't cause the harm.  The rock did.  Windshield = Tire.  Rock = Murderer.  Moreover, it seems to me like the Court of Appeal's "purposive" analysis applies equally in both cases.  The Court of Appeal says that the purpose of an effectively designed windshield is, in part, to prevent rocks from hitting the driver, ergo (potential) liability even for unforeseeable acts.  But surely one purpose of an effectively designed tire is similarly to make sure that it doesn't blow out and strand the driver on the side of a road, right?  If that's the case, there should be liability there too, no?

Indeed, as regards foreseeability, which of the following do you think is more likely to occur in a given day or month or year:  (1) Someone deliberately throws a 2.5 pound rock through the windshield of a moving car and kills them, or (2) Someone's tire blows out and a bystander comes by and kills them?  If someone gave you a magic wand and said that you wave it and thereby prevent one -- but only one -- of these events from harming you for the rest of your life, which one would you prevent?

Personally, I'm waving it at No. 2.  Because even though both events are totally unlikely, as between them, I think the second is more probable.  Hence more foreseeable.  But the Court of Appeal is fine with holding no duty with respect to that one as a matter of law and yet imposing potential liability on the other.  I'm just not sure that makes sense.  Either as a matter of policy or as a matter of doctrine.

Are there parts of me that tug the other way?  Sure.  Do I want a world in which windshields are as strong as they can possibly (and cost-effectively) be?  Yes.  Do I want manufacturers to comply with the absolute minimum safety standards.  Not always.  (Though I'll mention that, here, the federal standard seems pretty darn tough, and requires a windshield to withstand penetration from a 5-pound ball dropped from 12 feet.)  Do I feel bad -- really bad -- for someone seriously injured from a rock that might have been stopped by a stronger and more sloped windshield?  Yes.  Of course.

But at some point, you've got to cut off potential liability.  Particularly for intentional criminal acts of third parties, which we hope to prevent through alternative means (e.g., criminal punishment).  Should there nonetheless be liability when those criminal acts are reasonably foreseeable; for example, when they happen relatively commonly, or in the same area, etc.  Sure.  I'm on board for that.  But there's none of that here.

So I'm just not sure this reaches the right result.  Seems to me that we might well be able to say that the jury was right when it decided that the intervening act of a third party was the thing that caused the harm, and so we can thereby save its verdict.  Indeed, it may well be that the case shouldn't even gone to the jury to begin with.

Thursday, March 28, 2013

Vasquez v. Greene Motors (Cal. Ct. App. - March 28, 2013)

Even though I teach Civil Procedure rather than Contracts, every year, I talk about unconscionability, particularly with respect to arbitration agreements (which is, after all, a Civ Pro subject). 

I always ask my students to raise their hand if they always read whatever they sign, and have yet to see an appreciable number of hands.  We then read a variety of Supreme Court and other appellate cases, and the message I convey is (1) the courts increasingly enforce arbitration agreements that in prior years would unquestionably have been found unconscionable, and (2) courts are less and less willing to find it "excusable" for consumers to fail to read (and/or understand) what they sign, and increasingly use language that indicates how silly and unreasonable it is for a consumer not to read the entirety of a preprinted form presented to them before they sign it.  Notwithstanding what we all know full well to be the prevailing practice.

That's what I say.  Here's additional proof.

It's a classic contemporary arbitration holding.  In terms of attitude, form and substance alike.  The Court of Appeal reverses the denial of a motion to compel arbitration.

It's contemporary arbitration jurisprudence in a nutshell.

Wednesday, March 27, 2013

McDaniel v. Asuncion (Cal. Ct. App. - March 27, 2013)

The California Supreme Court should grant review in this case.  Despite the fact that the Court of Appeal got it right.

The usual rule is that an unapportioned CCP 998 settlement offer isn't valid if it's made to multiple parties and conditioned on all of them accepting.  That's because every party needs to have the independent right to either accept or reject the offer, and also because we need to be able to decide whether any particular party obtained a better result at trial, which is difficult (or impossible) with "lump sum" offers to multiple parties.

The question is whether that rule applies to wrongful death cases, which are somewhat unique.  In these types of cases, the heirs (or their personal representative) are required to jointly bring a single action on behalf of the decedent, and then are awarded a single lump sum that the trial court then allocates amongst the heirs depending upon their respective damage.  Can a defendant make a valid lump sum 998 offer to the entire group of plaintiffs in these types of cases, and can plaintiffs similarly make a joint lump sum offer?  Or do these offers have to be allocated?

The Courts of Appeal have been split on this issue for a while.  Justice Levy decides that these offers do not have to be allocated since it's a joint recovery and there's a unity of interest, and hence that the 998 offer in this case validly shifted $41,000 in expert witness costs.  This holding conflicts with a 1991 decision of the Court of Appeal in a case called Gilman, but is consisted with a different case (Stallman) decided that same year as well as a subsequent decision (Johnson).

In my view, it's more than about time for the California Supreme Court to definitively resolve this two-decade old split.  Wrongful death actions are fairly common.  So are 998 offers.  Whether a party gets to recover its costs and whether it is required to allocate recovery in its offer (with the resulting downsides) involve questions too common and important to depend entirely on what particular panel one happens to draw in the Court of Appeal.

The California Supreme Court should take this one up.

Tuesday, March 26, 2013

San Diego USD v. Commission on Professional Competence (Cal. Ct. App. - March 26, 2013)

This is a hard case.  Really, really hard.

Thad Jesperson teaches second- and third-grade students.  Opinions apparently vary widely as to whether he's a really good or really bad teacher.

Though that's all beside the point -- or at least ancillary to it -- once he's accused of inappropriately touching his students.  He says he only touches them in "good" ways.  And I'm convinced that there are indeed "good" ways to touch a student, and definitely bad -- incredibly bad -- ways as well.

Once I read about Jesperson's criminal trials, I lost all sympathy for the guy.  At his first trial the jury convicts him of lewd conduct with Emily A. but deadlocks on the other charges.  At his second trial the jury acquits him of charges against three other girls, but convicts him on one count involving Jaicee S.  At his third trial he gets convicted on all counts involving three different girls.  So he's sentenced to seven concurrent 15-to-life sentences.

Seems pretty straightforward, eh?  The dude's scum.

This conclusion is only weakened slightly by knowing that the trial judge in his second trial granted him a new trial on the one count for which he was convicted.  But it's weakened much more by the fact that in 2007, all of his convictions get reversed on appeal.  For jury bias was well as ineffective assistance of counsel.

But he was still originally convicted, right?  So the dude's "probably" guilty?

Then the San Diego District Attorney decides not to even attempt to retry Jesperson.

What to make of that?  If he was really guilty, wouldn't they have given it another shot?  This is a guy, after all, who we wanted to put in jail forever.  It's not like there's political reluctance to retry alleged child molesters.  What conclusions, if any, should we/I draw from the failure to retry?  Is there a reason to put aside my initial thoughts into this guy's character?

At least as involves the criminal charges, however, it's over.  He's a free man.

But does he get to teach again?

Because, you see, if he didn't in fact inappropriately touch his students, then he's entitled to retain his job with the San Diego Unified School District.  But San Diego wants to fire him.  So they initiate disciplinary proceedings.  Which is entirely proper, since the standard of proof at these things are different than the beyond-a-reasonable-doubt standard in a criminal trial.

What happens next?

You should read the opinion in its entirety for the various testimony presented at the administrative hearing.  This is not a classic "she-said-he-molested-me-and-he-denied-it" kind of trial.  The stuff is generally more subtle.  There's a teacher's aide there every day (Connie Murphy) whose testimony is strongly on the teacher's side.  In the end, the Commission unanimously decides in Jesperson's favor, and reinstates him.

At which point San Diego files a writ petition, which the trial court grants.  Finding that Jesperson did, in fact, inappropriately touch Emily S., and stating that the Commission's determination to the contrary (it found Jesperson more credible than Emily) flew in the face of the trial court's "three years of experience as a judge sitting in juvenile court" and evaluating the testimony of child witnesses.

At which point Jesperson appeals.

Now I'm torn.  Seriously, seriously torn.

One the one hand, there are criminal charges.  Most people think that where there's smoke, there's fire.  Especially when you're willing to burn a guy for 15 to life.  On the other hand, these charges were eventually dismissed and/or overturned.  But they were still there, right?

Plus, you've got a Commission that unanimously thinks that Jesperson should remain a teacher.  That's pretty big, no?  There's no way they're letting him back in the classroom if they are even suspicious that he might have molested kids, right?  They must clearly think that what transpired is witch-hunt-like and/or an overreaction.  Because people on the Commission are, I'm confident, not merely bureaucrats, but are rather people.  And people care when kids get molested.  So surely they had every incentive to bounce Jesperson if they thought he was a scumbag, and didn't.  That's got to say something.  Especially when they do it unanimously.

All that makes sense to me.  But let me ask the hardest question:

Do I want Jesperson teaching my own kids?

Yep, he could be great.  Yep, he could be the kind of caring, compassionate teacher who really gets to know his students.  Who cares enough to bend down and tie their shoes (as he indisputably does) at recess.  Who pats them on the back -- both figuratively and literally -- when they need it.  Who's the type of teacher you really, really want your children to have.

Or he could be a monster.

It's a freakishly hard case.

Ultimately the Court of Appeal decides that the Commission rightly gets to make certain credibility calls, and so reverses the trial court.  Again, as a purely legal matter, this seems right to me.

But the harder -- so much harder -- question is whether I'm happy that Jesperson is entitled to get back teaching at San Diego Unified.  On the one hand, if he's in fact innocent, this is a victory of immense proportions.  Justice prevailing over incredible -- truly incredible -- odds.

The reality, however, is that we'll never know.  We'll never know for sure.  And even if you think you're right, there will always be at least a smidgen of doubt.  About something you couldn't care more:  the welfare of your children.

So, so hard to figure out whether to cheer, scream or shrug one's shoulders.

U.S. v. Ruiz (9th Cir. - March 26, 2013)

Judge Paez affirms a conviction but doesn't do so with massive enthusiasm.  Judge Pregerson does the same thing, but is even less enthusiastic.

Monday, March 25, 2013

People v. Vallejo (Cal. Ct. App. - March 21, 2013)

It's not improper for a prosecutor to assert (in closing argument and elsewhere) that the defendant "brought a gun to a fistfight" when the defendant essentially did, in fact, bring a gun to a fistfight.

So holds the Court of Appeal.

Referencing famous movie lines: Not just for outside the courtroom.

Friday, March 22, 2013

People v. Mecano (Cal. Ct. App. - March 22, 2013)

Based upon what the jury found and the facts of this opinion, it seems like LAPD officer Russell Mecano is truly a sleazeball.  He abused his position to coerce powerless teenagers to sleep with him.  Yuk.

Read the opinion for more disgusting details.  Fear not:  Mecano's (presumably) no longer with the LAPD, since he's going to spend four years in prison.

Justice Aldrich's opinion contains this line regarding one of the victims:  "Crying, she called Ben and told him that she'd let Mecano do things to her, and she felt dirty.  Alex [the victim] called 411 and told a Pasadena police officer that she just had an 'incident' with a police officer, 'Rusty,' in which he let her 'off,' and 'bribed me with sex.'"

Are we sure that Alex really told all this to the 411 operator, not 911?  I mean, yes, it's information, and maybe it was Alex (not Justice Aldrich) who was confused.  But if it's a typo, I'd fix it, and if it's not, I might drop a footnote.

Thursday, March 21, 2013

People v. Pearson (Cal. Supreme Ct. - March 21, 2013)

This is why you take seriously a person's threats -- at a workplace or anywhere else -- to go on a killing spree.  Because sometimes they're not kidding.

More accurately, they may be "joking" at the time, but the statement may reflect an underlying desire or intent.  Particularly when, as here, the statement is repeatedly made.

Pearson gets fired for telling his coworkers that he might go postal.  Immediately upon being told that he was fired, he indeed goes postal.

He's sentenced to death, by the way.  A decision that's unanimously affirmed in an 109-page opinion.

Columbia Pictures v. Fung (9th Cir. - March 21, 2013)

It's a good day for content providers (e.g., movie studios) in the Ninth Circuit.  It's a bad day for anyone who likes to (illegally) download movies for free.

Here's a lengthy opinion by Judge Berzon explaining exactly how torrent sites -- e.g., -- work.  As well as why many of them will be shut down in the near future.

Round 16 of 184 in the neverending battle over copyrights and content control.

Wednesday, March 20, 2013

U.S. v. Guerrero (9th Cir. - March 20, 2013)

When you go to jail to post bail for your wife, who was busted the night before for possession of heroin with intent to distribute, it's probably best not to bring the entire $11,500 in cash.  Because the authorities might have a sneaking suspicion that maybe -- just maybe -- you got the money from, oh, I don't know, say, dealing drugs.

But if you do decide that cash is your best option, let me give one piece of advice.  Leave your remaining heroin at home.  Do not keep it in the trunk of your car.  Because they may well start to investigate your large deposit of money, search you, and discover your stash.

Like here.

There's an arrest.  There's forfeiture.  There's a whole heap of trouble.

All of which could have been avoided if Guerrero had just left the smack and cash at home.

Tuesday, March 19, 2013

County of Sonoma v. FHFA (9th Cir. - March 19, 2013)

I've seen a lot of acronyms in my time.  This opnion may approach the theoretical maximum.

Here's a list of acronyms.  All of them are used in Judge Murguia's opinion except one, which I made up.  Some of them are pretty common, but see if you can guess which acronym is fictional:


(I could have added FHLB, but Judge Murguia doesn't use the acronym for that one.)

Figure it out?  (Answer:  It's the one in the exact middle.)

Monday, March 18, 2013

Ogundare v. Dep't of Industrial Relations (Cal. Ct. App. - March 18, 2013)

Justice Kane's opinion in this case seems right on target to me, and I'm not sure how the trial court thought it could possibly been otherwise.

Pacific Engineering Company bid on a public works project (which was 99% of its work) and agreed to pay its employees prevailing wages.  It won a contract and submitted timesheets for one of its workers, Miguel Ibarra, that purported to show that he worked 25 hours and was paid a prevailing wage ($36.10 per hour).  But Ibarra testified that he was only paid $15/hour, and worked 61 hours, and had a paystub from Pacific Engineering to prove it.  In short, that Pacific Engineering faked his pay (and screwed Ibarra out of overtime pay to boot).

Pacific Engineering's only argument is that Ibarra's evidence is insufficient to prove that it wilfully violated the prevailing wage provision of the contract because Ibarra said that he didn't have an independent recollection of precisely how many hours he worked on that particular week.

Seriously?  That's the best argument you can come up with?  I currently don't know how many hours I worked during the week ending August 4, 2007 either.  But if my paystub that the company gave me that week says I worked 61 hours, that's pretty darn good evidence that I in fact worked 61 hours that week.  Especially if I know full well how much they paid me -- $15/hour -- and the paystub reflects that my gross pay that week was $915.  Particularly when combined with the fact that Pacific's counsel can't come up with any explanation for why the figures on my paystub are so radically different than the figures submitted to the state other than the lame excuse that the people in payroll must have been confused.  How that results in two radicially different sets of books that just happen to come out to the exact same total is unexplained.

So the trial court gets reversed, and Pacific Engineering has to wait a year before it can bid on any more public works projects.

Seems right to me.

Friday, March 15, 2013

Milke v. Ryan (9th Cir. - March 14, 2013)


I can't help thinking about the fictional Detective Sipowicz (NYPD Blue) when I read this case.  Someone the police "bring in" when you need to get a confession.

Contrast the real Phoenix Police Detective Armando Saldate with Sipowicz.  See if you have the same reaction to both.

Wednesday, March 13, 2013

Entente Design v. Superior Court (Cal. Ct. App. - March 12, 2013)

I think this is right.

There are fairly strict time limits within which you can "paper" a judge, but they vary depending on whether you're assigned a "master calendar" judge or a judge for all purposes or some other type of judge.  The thing is, in reality, those lines blur.

For example, here in San Diego (where this case is from), we generally assign civil cases to a judge for all purposes, and did so here.  But the trial judge who got the case -- Judge Meyer -- was busy at the point at which the case was scheduled to go to trial.  This is far from a unique circumstance; it happens all the time.  So Judge Meyer sees who's available, finds out that Judge Vargas is free, so tells everyone that Judge Vargas is their trial judge and to walk down the hall to clear things with Judge Vargas forthwith.  Which the parties do.

So everything's fine, and Judge Vargas says, yep, I'm free, see you in five days when the trial starts.  An hour later, one of the parties papers Judge Vargas.

But the trial court ruled that was too late.  That they needed to say something to Judge Meyer at the time it got assigned to Judge Vargas, not after.  Not even an hour after.  Whereas the party that filed the papers says they needed to consult with their client and make sure about the proper timing of the papering, which is why it took 'em an hour, and that this was proper.  So files a writ.  Which, among other thing, the Superior Court of San Diego itself chimes in on, claiming that the procedure that it employed (requiring contemporaneous papering) was both permissible and valuable.

But Justice McConnell disagrees.  Finding that Judge Meyer wasn't clearly a "master calendar" judge under these circumstances since he was originally appointed as a judge for all purposes, so it wouldn't be right to apply the master calendar exception.

I think that Justice McConnell makes the right call.  The statute assumes a bright line between who's a "master calendar" judge and other types of judges, and unfortunately, in practice, that's not at all the case always.  I could totally understand why the parties here were unclear as to when they had to (or were permitted) to paper Judge Vargas, particularly given the San Diego Superior Court's express rule that cases are either assigned to a master calendar courtroom or to a judge for all purposes.  It's undisputed that the latter occurred here, when it went to Judge Meyer, so it makes sense that counsel didn't necessarily think that Judge Meyer was acting as the former when he was figuring out to whom to boot the case for trial.

Nonetheless, while I agree with the Court of Appeal's disposition, I'm also sympathetic to the trial court's position.  Judge Meyer was booting the case for trial, which was going to happen shortly; i.e., in five days.  It simply doesn't make sense to give the parties the normal period -- ten days, by which time the trial would have started -- to bounce the guy.  Moreover, from an efficiency standpoint, it makes eminent sense to require a contemporaneous objection.  Judge Meyer's calling courtrooms and picking his replacement now.  It doesn't make sense to take a break, wait five days (or even an hour), and then bounce someone.  We're on the phone now, so if you want to object, let's hear it.  So I can see where the trial court's coming from.

For this reason, were I writing the opinion -- or were I the San Diego Superior Court figuring out how to respond to the Court of Appeal's ruling -- I think I'd suggest a simple solution.  Simply craft (or at the appellate level suggest the crafting of) a modified rule that clearly states that whenever a trial judge is assigned for all purposes, that judge automatically turns into a master calendar judge, and acts in that capacity, if he subsequently declares herself unavailable for trial and purports to assign the parties for trial to another courtroom.  That rule would make sense.  If there were such a rule, the duty to object (e.g., paper the judge) would be contemporaneous.  And, given the presence of the rule, the parties would be on notice of it and required to respond accordingly.

Problem solved.  Everybody happy.

Short of that, however, this is the right result.

Tuesday, March 12, 2013

City of Los Angeles v. Kern County (Cal. Ct. App. - March 12, 2013)

I'm certain that many readers are, right now, saying to themselves:  "I live in Los Angeles.  I wonder where my poop goes after I flush the toilet?"

Fear not.  Justice Wiseman has the answer.  As well as decides the issue.

Perhaps, however, you don't want to know the gory details, and only want the basic gist.  In that case, I'm happy to oblige.

Almost certainly, your "waste" ends up at the Green Acres Farm in Kern County.  Where it gets applied to crops and then sold back to you.

It used to be that Los Angeles treated the waste and then incinerated it.  But we've got to fertilize crops with something, right?  Cow poo or human poo.  Seems like a waste of money to burn the stuff, and maybe bad for the environmen to boot.  So Los Angeles spends $10 million to buy a 4600-plus acre farm in Kern County, and now ships 75% of its waste there to be dumped on crops.  It's smelly, and it attracts flies, but it works. 

Well, "works" for everyone except the people in Kern County who have to live near it.  Which is why Kern County passes a ballot initiative that prevents farmers in Kern County, including Los Angeles, from using "human biosolids" as fertilizer.  Predictably, Los Angeles files suit, and six years of expensive litigation follow.

Los Angeles wins the latest round.  The trial court entered a preliminary injunction against the Kern County ordinance, and the Court of Appeals affirms.  So poop will continue to be applied aplenty.

Some readers might say:  "Glad we're not wasting anything here.  Good job, Court of Appeal."  For those, I say:  "Congratulations.  Enjoy your victory the next time you visit the bathroom.  Consider it a valuable contribution to the environment.  Your good deed for the day."

Others, by contrast, might say:  "Wait a minute.  My poop on crops I might eat?!  Disgusting!"  But fear not.  Los Angeles only grows corn, wheat and alfalfa at Green Acres.  And only uses it for cow food, not human food.  So rest in peace.  (And try not to think about it the next time you're eating a steak or drinking milk.)

So there you have it.  The circle of life for human waste.  At least in sunny Los Angeles.

P.S. - Having read the case, the ditty to the old 60's television show now means something very different to me.  "Green Acres is the place to be."  The place, at least, if you're poo.  (And if Eva Gabor knew about what was in the fertilizer, she probably would have liked the place even less than she did on the show.)

Alberda v. Boad of Retirement of Fresno (Cal. Ct. App. - March 12, 2013)

Whenever I see an appeal involving a disability claim of a police officer or firefighter, I always assume that the employee is going to win.  It's an open secret in these professions that only the most foolish (or naive) employees actually "retire" when they feel like stopping work.  Rather, the common move is to retire on disability.  Your knees hurt, your back hurts, your butt hurts, whatever.  Sympathetic officials, judges, and onlookers will find the employee's claim credible, and will want to give something back for the employee's work on behalf of public safety over the years.  Only suckers, it's said, don't take advantage of what the public's willing to give them.  Even if a credible case takes a little (or perhaps a lot of) exaggeration and fudging with the facts.  It's perceived, at least by some, as an entitlement.  Or at least easy money.  Why not take it?

Given this backdrop, I was interested when I read this case.  In which both the Retirement Board as well as the trial court denied the police officer's disability claim.  Perhaps the well-publicized state of public pensions in California has started to give some pause to the usual practice.  Or perhaps this is an idiosyncratic case.  Regardless, the disability claim is denied.

Though that's a decision the Court of Appeal reverses.

Which doesn't necessarily mean that Thomas Alberda gets his disability pay.  But it does mean he gets another shot.

Alberda, by the way, is a 6'7" former basketball player who had two previous surgeries on his knees as a result of injuries playing basketball.  But Alberda claims that he's entitled to retire on a disability because problems with his knees both prevent him from working and are the result of his service on the force.

We'll see how it plays out on remand.

Monday, March 11, 2013

Appel v. Superior Court (Cal. Ct. App. - March 11, 2013)

As I was reading it, I thought I was going to go ballistic about this case.  Fortunately, the Court of Appeal didn't do what I thought it was going to do.  But it still doesn't go far enough.

The basic facts are these:  Developer hires Construction Company to build a condo project for $65 million.  Everyone agrees lots of change orders are subsequently approved that increase the price to $81 million, but after the project is finished, Construction Company claims it is entitled to an additional $13 million, so sues Developer as well as files mechanics liens against the individual buyers of the condos.

Developer and Construction Company subsequently settle their claims in return for a $32 million stipulated judgment against Developer -- which is meaningless because it's penniless -- and the settlement agreement says (1) the $32 million won't count as an offset against the lien claims against the condo owners, and (2) that the "contract price" for the work is "officially" $95 million.  That latter part's important because under the mechanic lien's statutes, Construction Company's liens are limited to the lesser of (a) the value of the work it performed, or (b) the contract price.  And, remember, the original contract price was only $65 million, not $95 million.

Then, prior to trial, Construction Company files a motion in limine saying that the individual condo owners aren't able to contest the contract price because it's now "officially" $95 million pursuant to the settlement agreement.  Here's what the trial court says about this argument at the hearing:

"COURT: Are you saying [the unit owners] don't have a right to attack the . . . value of the contract which was agreed after the fact as part of the settlement?

WEBCOR [The Construction Company]: We don‟t believe they have a right to attack that.

COURT: Well, that is just boggling to my mind. [¶] . . .[¶] [I]t totally boggles my mind, because you could agree to anything, anything [in the settlement]."   The trial court ultimately holds that it doesn't matter what the contract price was; that the only thing that matters is the value of the services rendered.   The Court of Appeal is critical of the trial court's reasoning.  It holds that, nope, the statute still says that liens are limited to the lesser of the contract price or the value of the services.  So the trial court got it wrong by takign the contract price "off the table" as an issue for trial.  That part I agree with.  It correctly interprets the statute.   Because the Court of Appeal's opinion was so critical of the trial court, however, I thought that, in the end, they might also disagree with the trial court's view that the "official" contract price established as part of the settlement shouldn't be binding.  Had the Court of Appeal done that, I would have strongly disagreed with this conclusion.  Which is, obviously, the Construction Company's position on the writ petition.   Fortunately, Justice Zelon doesn't do that.  The Court of Appeal instead holds that whether the settlement agreement was a "sham" is an issue that the trial court should decide on remand.  Moreover, Justice Zelon says that the Court of Appeal has "serious doubts" about whether the settlement agreement is indeed binding on the contract price issue as claimed by the Construction Company.  So that's a little push that hints at what the trial court might well permissibly find.   All that's good and fine.  I'm on board for that.   But I'd have gone further, and made things crystal clear.   There's no way the settlement agreement is binding on this point.  No way.  Sham or not.   Private parties can't take away a third party's statutory rights.  At least without notice and an opportunity to be heard.  That's an essential element of due process.  Regardless of what the settlement agreement says, and regardless of whether it's a sham, nothing in that settlement agreement can take away the affirmative defense that the condo owners have under the statute.  Nothing.  As a matter of law.   The statute says that the condo owners can avoid a lien if Construction Company has already been paid (1) the reasonable value of the workit performed, or (2) the contract price.  That's right.  If the contract says that Construction Company's only entitled to $65 million (or $80 million, or $85 million, or whatever), and it's already received payment of that amount, end of lawsuit.  Doesn't matter if the value of their services was $150 million.  They should have negotiated for a better contract.  No lien.   The Developer and the Construction Company can't get around that rule by doing what they did here; i.e., entering into what's ostensibly a retroactive "change order" as part of the settlement agreement that "sets" the contract price at $95 million.  The work's already been performed.  The contract already exists.  The condo owners have a vested statutory right to avoid any lien in excess of the contract price.  Private parties can't destroy that affirmative defense without giving the condo owners notice and an opportunity to be heard, and that's exactly what they're seeking at trial -- a factual determination, based on the evidence, as to what the actual contract price was.  They're entitled to that, and nothing in the settlement agreement can change that.   So I wouldn't have remanded the case by instructing the trial court to do whatever it thought was factually and legally appropriate with respect to the contract price issue.  Because in my view, as a matter of law, as well as a matter of constitutional doctrine, there's only one right answer.  So I'd go ahead and say so.  Even if the settlement agreement wasn't a sham, it's still not binding on a third party.  The contract price is what the contract price is, and the condo owners get to produce evidence on that point at trial.  What's true for issue preclusion is equally true for settlement agreements.  You can't bind a nonparty.

Friday, March 08, 2013

In Re Marcos B. (Cal. Ct. App. - March 7, 2013)

I'm pretty convinced that Marco B. was indeed selling drugs.  But that's not the point.  We have trials for a reason.  Including the ability to effectively cross-examine the only witness to the crime.

Justice Rylaarsdam properly holds that the trial court here denied Marco that right when it prevented his counsel from discovering from the police officer where he was when he allegedly saw what he saw.  Indeed, the Court of Appeal's opinion gives one a very bad impression of the trial judge -- Judge Deborah Chuang, in Orange County -- and (although Justice Rylaarsdam doesn't use this word) one might accurately describe the in camera hearing that she conducted as pretty much a cherade; or, more colloquially, a joke.

I understand that that police officer might not want to tell anyone where he was standing at the time; that way, s/he can use this location again, and potentially keep it secret.  But the officer's preference in this regard has to give way to the right of a defendant to contest the charges against him, especially in a case like this.  We can solve the problems about the "secret" location in other ways; e.g., protective orders, disclosure limitations, etc.

Justice in the Court of Appeal was a lot better here than it was in the trial court.

Thursday, March 07, 2013

Mincal Consumer Law Group v. Carlsbad Police Dep't (Cal. Ct. App. - March 7, 2013)

Soemtimes I can figure things out on my own, even when they're not expressly stated.  But that's not the case here.

An attorney files a Public Records Act request with a city to get various information about identity theft; in particular, the names and addresses of the victims.  The city gives the attorney certain information (namely, records during the past thirty days), but denies the request for the past nine months of records on the grounds that this information is "historical".  The trial court denies the attorney's writ petition, and the Court of Appeal dismisses the appeal on procedural grounds.

I understand the merits, which are straightforward.  But I'm a little unclear as to why the attorney wants the underlying records, and why it's worth an expansive fight in the trial court as well as in the Court of Appeal.  My sense is that the lawyer might be trolling for clients.  But is there really value in identity theft cases?  Are these really big moneymakers?

Alternately, I guess there's a scenario where the requested records would be relevant to an ongoing litigation.  But I can't come up with one on my own.

So, in short, I don't fully understand the business strategy here.

But that's no great surprise.  There's a reason, after all, that I'm a law professor rather than a managing partner at a law firm negotiating with banks and implementing a marketing strategy.

Wednesday, March 06, 2013

People v. Huynh (Cal. Ct. App. - Dec. 20, 2012)


Thankfully, Phillong Huynh will be in prison for the rest of his life.

But there are presumably more people like him out there.

The lesson of this case (amongst others) is to NOT go to bars with strange people who strike up a conversation with you and offer to pay for your drinks, etc.  Or at least, if you do, to be extremely -- and I mean, extremely -- careful about making sure that you at all times keep your eyes on your drink.

You may think that this message is just for women.

It's not.

Tuesday, March 05, 2013

People v. Andreasen (Cal. Ct. App. - March 5, 2013)

By contrast, here's someone who I'm glad will never be permitted to show his face outside of prison.

I understand that Eric Andreasen is somewhat nutty.  But he's scary nutty, not insane nutty.  He's a consistently aggressive panhandler and knifes a woman for utterly no reason.  Yes, I understand, he also gets naked in public and proclaims to be Jesus.  He's not all there.

But he knows it's not okay to kill people, and even the defense expert can only render a "soft" opinion on insanity, admitting that he was not able to say "100%" that defendant was insane.  The jury finds that Andreasen was sane, and given the evidence, I'm okay with that.

As I am with the fact that I'll no longer see Andreasen walking the streets of San Diego, wondering if and when he'd randomly kill again.

People v. Perez (Cal. Ct. App. - March 5, 2013)

What sentence is appropriate for the following crime:

Defendant holds down a nine-year old boy on a dining room table and then tells another boy to (1) stick his hand in a bag and then stick his hand in the nine-year old's butt, (2) put a Star Wars light saber with a broken tip in the nine-year old's butt, and (3) rub his penis on the nine-year old's butt, and in response to each of these requests/orders, the other young boy did so because he was afraid of defendant.

That's a pretty grim set of crimes, right?  No one wants their nine-year old abused in such a fashion.

So what's the appropriate sentence?

Oh.  One more thing.  The defendant is a sixteen year old boy.

I'm not sure if that last fact changes your answer.  But it likely changes mine.

The trial court gives the defendant a sentence of 30 years to life.  It doesn't like that it's compelled to do so, and notes that it has "sent a number of people to prison for first degree murder for less than the sentence" it felt it had to impose here.  But that's what the relevant statutes say, so the trial court held it had no discretion, even though if it were up to him, he'd have thought a sentence of 15 to life would be more just.

The Court of Appeal affirms.  Justice Bedsworth holds that this doesn't constitute cruel and unusual punishment, and is a permissible sentence for a sixteen year old, because it's not LWOP and because the sixteen year old will be eligible for parole thirty years hence, when he's 47.

Even if he would have reached the same result, I wish that Justice Bedsworth would have displayed a bit more remorse about the equities.  Instead, the opinion lacks anything like that, and suggests that a sentence of 30 to life seems just about right for the underlying crime.  Mind you, if the sixteen year old had simply killed the victim, he'd almost undoubtedly serve less time.  But that's apparently not a reason to doubt the wisdom or righteousness of the sentence.  Or at least that's the thought you're left with after reading the opinion, since there's nothing in there at all to suggest a contrary principle.

This is disappointing for two reasons.  First, the precedent on this issue is in flux.  Yes, I agree with Justice Bedsworth that the Supreme Court has thus far limited its holdings about youthful offenders to situations in which the defendant effectively never gets out of prison (and ditto for the California courts), so those cases are arguably distinguishable.  But the rationale of those cases could potentially extend to lesser sentences too, particularly when, as here, a child is unlikely to have a meaningful life upon release having essentially spent his entire existence in prison.  Yes, it's true, a 47-year old might indeed expect a decade or two of freedom before he dies (assuming, of course, he doesn't die earlier, in prison, or that his post-release life expectancy isn't reduced by his thirty years of incarceration).  I shudder to think, however, of the quality of those final two decades.

More importantly, there's something about the fact that the defendant is a child.  That's the reason for the Supreme Court's precedent.  Because we know that children are simply not as culpable as adults.  Their moral reasoning isn't fully developed.  We know they do messed up, utterly inexplicable stuff that might well indicate a fully depraved heart if done by an adult, but that nonetheless may well not mean the same thing for a child.  Did Perez know that he was doing something wrong when he told another child to stick a Star Wars light saber into another child's butt?  I'm sure he did.  But my sense is that -- in a totally messed up way -- he somewhat thought it was a "game".  And I'm darn sure that he didn't recognize the seriousness of what he was doing.  His internal assessment of the situation, as a child, was qualitatively different than what an adult would be thinking.  That's simply the nature of children.  Particularly, I might add, as regards sexual practices with another child.

But none of that matters to the statute.  At all.  The statutes makes the child be charged as an adult.  No discretion.  It makes the sentence be 30 to life.  No discretion.  The statute's designed for adults, and concerns the forceful molestation of children.  We are understandably harsh about that.  But the text of the statute facially applies whenever the defendant is seven years older than the victim.  Even if the defendant is himself a child.  Ergo the virtually life-long incarceration.  A result that, at least as far as you can tell from the opinion, seems entirely fine to Justice Bedsworth.

I think there's a colorable argument to be made that a statute that entirely removes discretion with respect to child offenders and that automatically sentences them to serve nearly all of their relevant adult years in prison is unconstitutional under the Supreme Court's precedents.  Is it a slam dunk?  No way.  Would the Supreme Court actually so hold?  Maybe.  Maybe not.  I could certainly see three or four votes for such a proposition, and maybe even five.  I could certainly see such a holding come out of a differently-constituted Court, or from a state supreme court not compelled to interpret its state constitutional provisions identically to those contained in the federal Constitution.

Which is not to say that Justice Bedsworth necessarily gets this one wrong.  If I were a betting man, my money would, in truth, be on the U.S. Supreme Court doing the same thing.  Albeit with a dissent.

But here's the thing.  Tone matters.  Caveats matter.  When you're dealing with locking up a child for a minimum of 30 years, I think it makes sense to demonstrate some concern.  Some feeling that what you're doing may not, in fact, be just.  Some feeling that it's not just history that may view the holding that you now pronounce as unsound, but that a large segment of society -- not just the child's parents -- may feel that an injustice has been done, and that a child has essentially had his life taken away by mandatory structures that wrongfully do not take into account the fact that the perpetrator is a child.

One final thing.  Justice Bedsworth ends his opinion by saying that "Perez makes no argument or data to the effect that other American jurisdictions impose on 16-year olds significantly more lenient sentences than the ones given here."  Well, I can't say what data Perez had.  But it only took me five minutes on Google to discover that the average sentence for juveniles convicted and sentenced in adult court for sexual assault is less than nine years; i.e., less than a third of what Perez received.

Oh.  One more thing.  Don't forget we're part of a global community.  Let's compare Perez's sentence to the worst of the worst.  Perez gets 30 years.  What sort of sentence would we give someone who, say, (1) was an adult, (2) who dresses up as a police officer, goes to a youth camp, and methodically shoots and kills 69 people, mostly children, and then (3) smiles about it and is utterly remorseless?

That guy, Anders Breivik, gets 21 years.  Nine less than the toy lightsaber-wielding sixteen year old offender here.

Monday, March 04, 2013

Valle Del Sol v. Whiting (9th Cir. - March 4, 2013)

It might seem easy to accurately summarize the facts of a case and the court's holding in a couple of introductory paragraphs.  But it's not.  Trust me.

Judge Fisher nonetheless accomplishes this task beautifully.  Here's what he says:

"Two provisions in Arizona’s Senate Bill 1070 make it unlawful for a motor vehicle occupant to hire or attempt to hire a person for work at another location from a stopped car that impedes traffic, or for a person to be hired in such a manner. These provisions raise First Amendment concerns because they restrict and penalize the commercial speech of day laborers and those who would hire them. Arizona defends the provisions as traffic safety measures, designed to promote the safe and orderly flow of traffic.

We acknowledge that Arizona has a real and substantial interest in traffic safety. Arizona, however, has failed to justify a need to serve that interest through targeting and penalizing day labor solicitation that blocks traffic, rather than directly targeting those who create traffic hazards without reference to their speech, as currently proscribed under the State’s preexisting traffic laws. Laws like this one that restrict more protected speech than is necessary violate the First Amendment.

Arizona has also singled out day labor solicitation for a harsh penalty while leaving other types of solicitation speech that blocks traffic unburdened. Arizona defends this content-based distinction by invoking the “unique”  dangers posed by labor solicitation. That justification is only minimally supported by the record and, tellingly, S.B. 1070’s introduction says nothing about traffic safety. Rather it emphasizes that its purpose is to encourage self-deportation by stripping undocumented immigrants of their livelihood. Adopting content-based restrictions for reasons apparently unrelated to traffic safety further supports the conclusion that the day labor provisions restrict more speech than necessary.

Accordingly, the district court did not abuse its discretion in concluding that the plaintiffs were likely to succeed on the merits of their First Amendment challenge to the day labor provisions. We therefore affirm the district court’s grant of a preliminary injunction barring their enforcement."

You can read the entirety of Judge Fisher's 35-page slip opinion for more details.  But his introduction is a pretty darn good one, and tells you essentially what you're going to hear.

Well done.

Bourhis v. Lord (Cal. Supreme Ct. - March 4, 2013)

Principles of stare decisis are typically throwaway values.  They get talked about and relied upon, but they don't actually matter.  High tribunals generally do what they want to do regardless of what their predecessors did decades ago.

Here's an exception.

I have a strong sense that the California Supreme Court (or at least some of the justices thereof) are of the opinion that a suspended corporation shouldn't be able to revive a notice of appeal filed during its suspension by paying its taxes after the jurisdictional appeal period has passed.  Nonetheless, because a case from the California Supreme Court forty years ago held the contrary, the court elects to follow that precedent and let the appeal go forward.

Justice Kennard makes a pretty good argument for going the other way, albeit solely prospectively.  But I'm persuaded by the majority's contrary position.  Not entirely based on stare decisis.  (Though that factors into it.)  But also because barring an appeal would preclude an evaluation of the case on the merits -- a generally unfavorable result -- and would require the court to decide the uncertain line between barred and unbarred cases.  I'm sympathetic to barring the appeal here, for example, because the corporation knew it was suspended during the trial but still didn't pay its taxes for a long time; e.g., until after the period to appeal had expired.  But what if a corporation was suspended (or only found out it was suspended) the day before the notice of appeal was due?  Seems harsh to hold that revivor is precluded in those settings.  Especially since we do nothing at all like that in the trial court, in which revivor is pretty much routinely applied and retroactively validates the entirety of the corporation's appearance.

So I can see Justice Kennard's point.  But I'd have signed onto the majority opinion.

Friday, March 01, 2013

People v. Landau (Cal. Ct. App. - March 1, 2013)

Landau was convicted in the 80s of molesting children.  He's been in prison since then, but he's now served his sentence.

Does that mean Landau gets released?


He's now 74 years old.  He's had prostate cancer while in prison, a heart attack, and has had a pacemaker installed.  None of these things exactly enhances his libido and makes him want to go out and molest more children.  He can't keep an erection and the radiation treatment he's had for prostate cancer makes it affirmatively painful for him to ejaculate.  He's taken responsibility for his prior acts and says he's reformed, and there's substantial medical reasons to think he might be right.

But the District Attorney disagrees, saying that pedophila isn't curable.  So they file to keep Landau incarcerated as an SVP even after he's served out his sentence.

It takes him six years to get to trial on the SVP petition.  The jury hangs 11-1 in favor of finding the petition untrue and accordingly releasing Landau.

He then gets a second trial.  Two years later.  Jury hangs again.

Third time's a charm?  Not for Landau.  This time he loses.  As he does in the Court of Appeal.

So no freedom for the 74-year old Landau.  Presumably ever.

P.S. - I haven't seen this before.  When he's incarcerated, as part of his psychological "treatment" (for an allegedly uncurable illness), his doctors affirmatively tell him that he should view pornography, so he does.  (Presumably so he can start getting excited by age-appropriate photographs.)  I've heard of people saying that they do lots of things "for medicinal purposes," but never heard of anyone saying that for porn.  Much less heard of it ever being accurate.  Strange but true, apparently.