All Towing Services LLC v. City of Orange (Cal. Ct. App. - Oct. 22, 2013)

My impressionistic view of this opinion leads me to believe that the quality of American All Star Towing in Orange is roughly the same as the quality of its lawyering below.

Which compliments neither.

I'd vote against including them on the approved tow list as well.  If only based on what I read here.

State Dep't of State Hospitals v. Superior Court (Cal. Ct. App. - Oct. 30, 2013)

"This case arises out of tragic circumstances. Just four days after he was paroled from state prison, Gilton Pitre raped and killed Alyssa Gomez."

That's an understatement.

U.S. v. Kyle (9th Cir. - Oct. 30, 2013)

Sometimes, all you really want on appeal -- and you want it desperately -- is for the case to be reassigned to another district judge on remand.  You'll make whatever arguments on the merits you can.  But what you desperately need is for the Ninth Circuit to send the case back to a different judge.

Here's a perfect example.

Sometimes the procedural consequences of an appeal are equally as important -- or even more important -- than the substantive ones.

People v. Doyle (Cal. Ct. App. - Oct. 29, 2013)

DUI is typically a misdemeanor.  You pay a fine and you're done.  Unless you hit someone or something, or some other unusual circumstances apply.

Douglas Doyle drives while intoxicated in August 2008.  He doesn't hit anyone or anything.  It's a routine DUI.  The exact same circumstances that you see a hundred times a day here in California.

Except he's sentenced to 29 years to life.  The Court of Appeal affirms.

Welcome to the world of Three Strikes.

Ritchie v. U.S. (9th Cir. - Oct. 24, 2013)

I appreciate what Judges Nelson and Nguyen write here.  Truly.

But I feel like it's almost certainly for naught.  How many times have federal judges written to strongly urge that the Supreme Court limit (or overrule) the Feres doctrine, which holds that servicemembers categorically can't sue for injuries sustained during military service?  Three dozen?  Five dozen?  A hundred?

Does the Supreme Court seem to care?  Does it actually take up the matter?  No.  Not at all.

As Judge Nguyen writes in her opinion:  "For the past sixty-three years, the Feres doctrine has been criticized by 'countless courts and commentators' across the jurisprudential spectrum. Id. at 295; see also United States v. Johnson, 481 U.S. 681, 700 (1987) (Scalia, J., dissenting) (“Feres was wrongly decided
and heartily deserves the widespread, almost universal criticism it has received.”)."

What are the odds that this latest missive by the Ninth Circuit changes things?  Slim to none.

That doesn't mean you don't write the thing.  But once you've read so many nearly identical concurrences decade after decade, you've got to wonder:  What's the point?  No one seems to be listening.

Nonetheless, the motto of my college was Vox Clamantis in Deserto.  So I guess you just keep on crying out.  As the Ninth Circuit does here.

Young v. Horizon West (Cal. Ct. App. - Oct. 28, 2013)

Grandma's had a stroke.  She's 88.  After her release from the hospital, you reluctantly put her in a nursing home. 

A couple of weeks later, she  tells you she wants to leave immediately.  No surprise.  These places are rarely fun.  Of course she doesn't want to be there.  Who would?

She also tells you a story.  Though she can't communicate very well, she spins some sort of tale about having woken up with previous evening with her catheter removed and hearing male voices near her bed, seeing her curtains move, and having someone at the nursing home say "This is why I love my job."  With her additional claim that she heard someone "fiddling" with the nurse call button next to her bed so that it wouldn't work. 

Oh, Grandma.  I know the stroke is tough.  I know that nursing homes are terrible places to be.  I know that you're scared and frightened.  Of the stroke.  Of the staff.  Of everything.  Even a rational person would have reason to confabulate.  That an 88-year old stroke victim would do so is even less surprising.

With one caveat.

You inspect the nurse call button.  It has indeed been unplugged.  At the same time, you notice unexplained deep bruising on Grandma's inner thigh.  And she starts complaining -- for the first time ever -- of pain in her vaginal and anal regions.

You arrange for her removal from the facility.  You also have her tested.  At which point you discover that she's contracted genital herpes.  Grandpa -- who's been her husband for the past 70 years, and her one and only sexual partner ever -- tests negative.

Talk about a lawsuit.

Defendant better settle this one.  Regardless of whether the thing proceeds to arbitration.  (And, on that front, the Court of Appeal holds that, nope, the arbitration agreement that Daughter signed on Grandma's behalf isn't binding.)

Because I think the defendant's going to get spanked.  Hard.

People v. Childs (Cal. Ct. App. - Oct. 25, 2013)

This is why you don't piss off your IT person.

But also why you shouldn't allow them to become all-powerful.

Because they're geeky.  And can wreak havoc.

In Re Marriage of Davis (Cal. Ct. App. - Oct. 25, 2013)

The details of another couple's marriage are often unknown outside of that marriage:

"The parties were married on June 12, 1993. They have two children, a daughter born in August 1995 and a son born in November 1999. The couple stopped being sexually intimate in 1999, after their son was conceived. They also did not go out on any 'dates' after their son was born. The parties disagreed as to when they stopped sharing a bedroom. Xavier testified Sheryl moved to another bedroom in 2001, while Sheryl testified this happened in 2004. . . .

Sheryl testified she believed the marriage was over in March 2000, but that she kept up appearances for the sake of the children for eight years before filing for divorce. She explained that the parties agreed to stay together because they both came from two-parent households and did not want their children to experience separation from either parent. . . .

In June 2006, when the school year had concluded, she announced to Xavier that the marriage was over. She told him she would continue contribute to her half of the household expenses. In order to segregate the parties‘ finances, she developed a spreadsheet that itemized every single household expense and the anticipated expenses for the children, of which they were to each pay 50 percent by making deposits into the community account. Any other money would be kept by each as their own money to spend as they wished.

After June 1, 2006, Sheryl took Xavier off of her credit card and ceased making any charges on his credit cards. Each person became responsible for his or her personal expenses for gas, food, personal credit cards, gym memberships, and life insurance premiums. When he failed to contribute enough to the community bank account to cover his half of their joint costs, she decided to divide and allocate the individual community expenses. She created the ledger to show which bill each person was responsible for paying.

Sheryl testified that she continued to live in the home after June 2006 because it was her home just as much as Xavier‘s, but she made an effort to keep their interactions to a minimum. The job that she started in July 2006 was based in Los Angeles, and she would go there every week and stay at a hotel between three to five nights each time. In her mind, the parties became more like roommates, and she participated in family events solely for the sake of the children. This testimony is supported by an e-mail message Xavier sent to her in March 2007 (before he claims the separation took place) stating: 'Its [sic] not about us desiring to have dinner together when we are all in the same house but about a need that our children have to develop a good healthy sense of family dinner. Its [sic] not about us desiring any particular thing but agreeing to be functional as long as we are in the same home. . . . I don’t have any reason in the world to be positive or friendly with regard to you (your motives are clear) but until we are engaged in dissolution, we both need to be selfless to protect our children’s perspective of family.'

Family togetherness was minimized as much as possible. The family had a prepaid trip to Hawaii in 2006 and the parties did not want to disappoint their children because they were accustomed to going to Hawaii every year. The parties slept in the same hotel room, but they did not share a bed. Instead, they would get a room with two beds and each parent would sleep with one of the children. From that point on, Sheryl took the children on two vacations every year, one to Las Vegas and the other to Hawaii. She also took them to a family reunion. In 2008, she took the children to Las Vegas and Hawaii again. Xavier took them on a train excursion. Sheryl did not accompany him on that trip because 'as far as I was concerned we were no longer a family.'

The parties also drove separate cars to back-to-school nights. Sheryl would not ride in the same car as Xavier unless the children begged her to do so. He would invite her to go on family vacations with him and the children, but she would always decline to go. She never invited him to go on her vacations with the children. The parties continued to celebrate birthdays and other special occasions by going out to restaurants together. December 2010 was the first year they did not exchange Christmas gifts.

Sheryl reassessed her living situation after she was forced to pay all of the community expenses beginning in February 2011, when Xavier said he did not have any money. She paid these expenses from that point on until when she moved out in July 2011."

Of course, now that the opinion is published, everyone -- including Sheryl and Keith's children -- get to view all of the sordid details.

Which makes you wonder whether the candle was really worth the wick.

State of Arizona v. ASARCO (9th Cir. - Oct. 24, 2013)

Plaintiff files a sexual harassment lawsuit.  Defendant, not surprisingly, disputes liability and damages.  Jury comes back and awards (a) compensatory damages of $1.00, and (b) punitive damages of over $850,000.

One problem.  Federal law caps punitive damages in such cases at $300,000.

Trial court enters judgment for $300,000.  Defendant claims that punitive damage award violates the Due Process Clause.  Claiming that the ratio of 300,000 to 1 is way too high.

What's the right result?

(A)  Return punitives to $850,000+.
(B)  Keep punitives at $300,000.
(C)  Reduce punitives to $125,000.
(D)  Reduce punitives to $25,000.
(E)  Reduce punitives to $2,500.
(F)  Reduce punitives to $10.

I'll say at the outset that (A)'s not right.  The cap's the cap.  So it's really between (B) through (F).  I'll also add, in favor of (F), that the Supreme Court has stated that, in general, a 10-1 ratio of compensatory to punitive damages approaches the "outer limit" of what's permissible under the Due Process Clause.  But I'll additionally note that the Supreme Court has also said that higher ratios might be justified when "a particularly egregious act has resulted in only a small amount of economic damages."

So what's the right result?

Judge Hurwitz says (B).  But Judge O'Scannlain, who authors the majority opinion, says (C).

It's a neat little dispute.  The Fifth Circuit has held that the whole "ratio" thing doesn't apply when only nominal damages are awarded, and I (alongside Judge Hurwitz) find that view somewhat sympathetic.  By contrast, Judge O'Scannlain thinks it's still applicable, but nonetheless adopts a 125,000-1 award that, in normal settings, would clearly be impermissible.

So definitely worth thinking about.

I've only got one additional thing to say on the issue.  The majority adopts -- and expresses into judgment -- an 125,000-1 award because this is "the highest ratio we could locate among discrimination cases."  But that's just a factual happenstance.  Imagine the most egregious sexual harassment case imaginable, but one with only nominal damages.  Huge harassment.  Repeated attempted forcible rapes.  Disgusting comments and discrimination.  Everything imaginable.  But only nominal damages of $1 because plaintiff didn't actually see any of this stuff (and in any event got a higher paying job afterwards).  I'd imagine that case would be even higher than a 125,000-1 ratio.  Indeed, it might have already actually existed, and been settled for much more than that.  Would that now be the "highest ratio" the Ninth Circuit could find?  Is it really anything like the right standard to say that the constitutional maximum is whatever happens to have come before?  Isn't there always a first case -- and always a potentially worse one?

I agree that it's always difficult to pick a seemingly random number out of a hat.  Particularly when you're claiming that this particular figure is required by the Constitution itself.  But it seems to me that the purported methodology for picking that number here has the illusion of certainty and yet is actually untenable.

Regardless.  A fascinating issue.

U.S. v. Steele (9th Cir. - Oct. 24, 2013)

You'd think that if you were a criminal defense attorney, you'd know better than to hire a hit man to kill your wife and mother-in-law.

Sure, you might know some unsavory people.  But presumably you'd also know that people get caught.  All the time.  Even when they think they're infinitely smarter than the police.

Admittedly, California attorney (and UCLA Law School graduate) Edgar Steele might perhaps have gotten away with it. The pipe bomb that the hit man put in the tailpipe of the wife's car might have indeed gone off.  Except that the wife had the good fortune to get her oil changed at an extremely fortunate time.  Which led to the discovery of the pipe bomb.

You'd at least think that Steele would know that, after the first attempted bombing had failed, not to threaten his would-be hit man.  But nope.  That's exactly what Steele did.  Telling the hit man that unless he tried again -- harder, this time -- Steele would hire a second hit man to kill not only his wife and mother-in-law, but the first hit man as well.

You know why you don't do that?  Because at that point, the hit man might well go to the FBI.  Which is exactly what he in fact did.

Even if you make all of these mistakes, I can't fathom how a defense attorney could possibly be stupid enough to tell his wife -- on an obviously recorded line from the jailhouse -- to perjure herself.  But yep.  That's exactly what Steele did as well.  So add witness tampering to the list.  Which also doesn't exactly help your defense on the murder charge at trial as well.

Not the brightest decisions anyone's ever made.  At all.

Affirmed.

U.S. v. Black (9th Cir. - Oct. 23, 2013)

I agree with a lot of what Judge Noonan has to say in dissent.  Particularly about the sentencing entrapment part.  When the government invents -- out of whole cloth -- a purported "stash house" that purportedly has a ton of cocaine in it, and then seeks out (in a "reverse sting") people to steal from it, there's a huge ability to set defendants up for long sentences based upon a purported volume of drugs that never actually existed.

I would nonetheless side with Judge Fisher's majority opinion.  It's true that the government didn't actually target known criminals here.  It just hired a CI to troll bars in the "wrong part of town" to see if he could hit up someone to rob a purported stash house.  Yeah, that's sort of creating crime out of nothing.

But I don't think that's especially outrageous.  These are serious crimes.  A regular person approached by a stranger in a bar is not likely to agree to rob a cocaine stash house guarded by multiple dealers with guns just because someone offers him the opportunity to do so.  Anyone who says "yes" to that is likely to be a pretty bad guy.  Someone we want off the street.  Sure, I'd rather have individualized suspicion at the outset.  But sometimes we don't.  We need to troll.  We do it for fish.  We do it here.  I don't have a huge problem with that.  At least for crimes that, like here, are only likely to entice someone who's really, really bad.

In Re Aiden G. (Cal. Ct. App. - Oct. 22, 2013)

I commented on this opinion when it first came out last week.  A sad case, with sad delusions.

Today the Court of Appeal understandably changes the opinion (as well as the caption) to delete the names of the parties.  "Aiden G." gets changed to "A.G.".  "Caroline G." gets changed to "C.G."  Ditto for the rest of the participants.

Which is great.  That's what we do (by rule) on the federal side of things when minors are involved.  It's also equally appropriate here.

Though I'll add one thing.  The Court of Appeal -- and the parties -- shouldn't be all that worried about things.  Right after I read the original opinion, I spent five minutes or so trying to figure out the last names of the parties through a basic internet search.  Just to see if there was some additional crazy stuff out there on the web.  No dice.  Even with the names of the parents and the kids.  Not that easy.

Mind you, with that information, I was able to obtain the names -- with only a tiny little bit of work -- on some specialized databases.  But even though the results were interesting, I thought it sufficiently private to keep the stuff to myself.

But the vast majority of the public wouldn't be able to get that information just from the names.  So fear not.

Still, the right thing to do is what the Court of Appeal did.  Refer to 'em by initials.  No reason to put this family law stuff out there for everyone to see.

In Re Marriage of Woolsey (Cal. Ct. App. - Oct. 22, 2013)

It's not surprising that California courts would want to enforce (1) mediation agreements, (2) in family law cases.  We like the former.  We hate the latter.  We want them resolved.  So, so badly.

Which makes the outcome of this case not at all surprising.  It's a mediation.  A quasi-religious mediation, but a mediation nonetheless.

(For a sense of what the mediation was like, here's a snippet from the ultimate agreement the parties signed:  "Clark and Anna met for four days to work towards reconciling their relationship. With God's help, and with the desire to honor and glorify God, Clark and Anna heard each other and addressed their failures. Although they are filing for divorce, they desire to live a life of peace as they continue to serve and parent their children. Please pray for them as they grow in their relationship with God, their children, and others."  You don't usually see stuff like that when you mediate with JAMS.)

Did the parties dot all the i's and cross all the t's as you're usually required to do in most family law cases?  No.  They didn't.  They did some financial discovery.  But not everything that's traditionally required in the litigation setting.

But that doesn't matter.  Notwithstanding some facially strict statutory requirements, the Court of Appeal holds that the mediation agreement is binding.  What they did at the mediation was close enough.

SEC v. CMKM Diamonds (9th Cir. - Sept. 10, 2013)

The Ninth Circuit may perhaps be correct that these particular defendants might not have done anything wrong.  They certainly didn't do nearly as much wrong as the principals.

Nonetheless, I'd be lying if I said that the scope of the underlying fraud doesn't affect me.  Here's the basic scoop (from the Ninth Circuit's opinion):

"CMKM, holding itself out as a gold and diamond mining company, increased its number of shares to 800 billion. Urban Casavant and John Edwards, respectively CMKM’s CEO and director of 'post-merger matters,' then began issuing and selling shares of unrestricted stock. CMKM in fact had no legitimate operations. The company issued false press releases, operated a promotional racing team that traveled around the country, and provided investors with fake maps and videos of mineral operations in North and South America. The proceeds of the stock sales were used primarily to finance the personal lifestyles of Casavant and Edwards. As a result of the scheme, approximately 40,000 investors lost at least $64.2 million."

My gut tells me that the appropriate sentence for such conduct is . . . oh, I don't know . . . around 50 years in prison.  I'm sure the guidelines call for less.  And were I to actually have to sentence real people, in a real life courtroom, I would likely give 'em less than that.

But I still view the underlying facts as egregious.  Deliberate and pervasive theft, of millions of dollars.  You go to prison for that, in my view.  For a long time.

And, I know, this is a civil case.  And yes, I know, this is a civil case against players who had indisputably had a more "minor" role than the major players.  Perhaps even people who were simply "doing their job" as attorneys and transfer agents and the like, and who didn't know about the fraud or actively participate in it.

But you know what?  The fact that these defendants made half a million or so from this scheme (or at least that was the district court's disgorgement order), and the nature of the scheme itself, makes me more than a little suspicious.  We're talking about a company you've never heard of trading OTC on the "pink sheets".  A company that you know has issued 800 billion -- that's "billion" with a "b" -- shares.  To say that those are red flags is an understatement.  When you're making half a million dollars or so on the deal, you know what?  You better keep yourself informed.  You better make sure you're not helping to scam people out of millions.  And while I know I'll require more before I put you in prison, if the only thing you face is disgorgement of your ill-gotten booty, well, to be honest, that's not something that completely freaks me out.  Maybe if you know you're going to lose your stash you'll think twice about turning a blind eye to the millions of warning signs at confront you when you're helping to register and transfer 800 billion shares and writing 350 opinion letter telling people that everything's cool.

Could you do all of that and be entirely innocent?  Yes.  It's possible you could.  But is it also possible that -- deep down or otherwise -- you've got a pretty good sense of what's actually going on here?  And/or know enough to shut up, keep your head down, and just be happy making your many trips to the bank?

Darn tooting.  To prevent that danger, if the SEC orders disgorgement, does it freak me out?  No.  It does not.

So I'm not saying that the panel here gets it wrong.  But I'm also saying that people shouldn't help other people commit massive frauds, and if people know that any benefits from their potential involvement in such conduct may well be clawed back by the SEC, I bet they'll be more careful.

And that's not such a bad thing at all.

Self v. Sharafi (Cal. Ct. App. - Oct. 11, 2013)

What I know about covenants that run with the land could fill a thimble.  Nearly to the top.

The last time I thought deeply about property law was back in law school.  I took Property from a professor who subsequently became ambassador to the Vatican.  What I largely remember from that class was that there's a series of cases of about who owns foxes and other wild animals.  That's about it.

You can see why I decided not to become a real estate attorney.

But I nonetheless read this opinion -- several times, actually -- even though it's all about whether or not a particular covenant runs with the land.  Part of that's because the dispute arises in my area (San Diego), and in a particularly chi-chi part of town at that (La Jolla).  Part of it's also because the Court of Appeal reverses the trial court, so that's always fun.  And part of it's because I don't know diddly about the subject, and was totally confused at various points in the opinion, so thought I'd try to push myself to figure out both (1) the facts, and (2) the relevant law.

After quite a while, I think I've accomplished both.  Yet I'm still conflicted.

So I thought I'd share.

The facts are pretty simple.  So you'd think there'd be an easy answer.  (Even though, apparently, there's not.)  Basically, A sells B a piece of land, and retains a piece of land right next door, but only on the condition that there's never going to be any building on one of the pieces.  You can see why, right?  Especially in La Jolla.  You want to keep an ocean (or golf course) view.  You don't want a neighbor right next door.  Etc.  Makes total sense.

Now, if you ask me -- or anyone else who knows absolutely nothing about property -- that's clearly got to be a covenant that runs with the land, right?  Otherwise what's the point?  It clearly concerns the land.  It's all about it.  And it makes no sense to sell some land to X only if he can't build on it if he can simply turn around and tell it to Y and Y can build on that.  That'd defeat the whole purpose.

So when you sell someone a piece of property and expressly put (as here) a "Restriction" on the relevant deed that says (again, as here) that "A consideration of this sale is that no buildings will be erected now or at any future date" on the relevant property, well, that's surely a covenant that runs with the land.  At least to my uneducated eyes.

But what counts as clarity gets far muddier when I actually read the relevant law.  Yes, to run with the land, a covenant has to deal with the land.  As it does here.  But, apparently, under the relevant statute applicable here, a covenant only runs with the land if it is "made for the direct benefit of the property."  In other words, if "a burdensome covenant contained in a deed [] in no way benefits the property conveyed," it's not binding.

Which means that, in this case, the dispute is all about whether a restriction that says you can't build on Property X actually "benefits" the relevant property.

But, of course, that's silly.  Burdens on property rarely benefit that property.  They usually benefit some other property (or owner thereof).  Sure, in some cases, they may benefit everyone -- to a degree, at least; e.g., HOA regulations.  But if the burdens actually benefitted the property, there wouldn't be a dispute in the first place, because the owner of that property wouldn't be trying to get around a covenant that benefits him.

So, in the end, this appeal all revolves around which property benefits -- if at all -- from the covenant at issue.  And the Court of Appeal holds, in the end, that the relevant covenant benefitted the property at issue because (at least if I understand it correctly) the seller was selling a piece of property and was retaining the relevant piece of land for himself.  So because the seller sold one piece of property and simultaneously promised not to build on the other piece of property -- the retained part -- that means the covenant runs with the land.  Because the covenant was for the benefit of the property that was "conveyed" (that was sold) even though the restriction burdened the property that was retained.

Okay, I get that.  That's analytically sound, I guess.

But it just seems super weird to me.  It sounds like even though this covenant runs with the land -- a result that makes sense -- it wouldn't have run with the land if the underlying transaction was only slightly different in form and yet identical in substance.  So, yes, I get it, a seller can sell a lot and agree not to build on the next door lot, and that runs with the land.  But if a seller sells the same next door lot and agrees that the next door lot won't have any buildings on it, that covenant would not run with the land.

That makes no sense.  At all.  At least to me.  It shouldn't mater in the slightest how the transaction is structured.  If Seller owns A and B -- two lots next door to each other -- and wants to make sure that one of them gets sold and the other doesn't have any buildings on it, they should totally be able to do that any way they want.  As long as the Buyer agrees, it shouldn't matter (to my uneducated mind, anyway) whether Seller disposes of A, or retains B, or retains A, or sells B, or whatever.  One of the lots stays vacant, the other has a building on it.  Forever.  Seems like as long as A and B are both on board for that result -- which they obviously must be for the sale to go through -- it shouldn't matter the form the transaction takes.

Yet, here, it dispositively does.  So much so that the trial court's ruling gets reversed.

So I understand the result here.  One I'm sympathetic with.  But the underlying legal principles are nonetheless baffling to me.

P.S. - Plus, to make things even more troubling, having looked at Google Maps, it looks like the side that won below has at this point pretty much already built his house on the relevant piece of land.  So what do you do now, since the Court of Appeal has held that, nope, the covenant runs with the land.  Tear the thing down?  Pay extortionate rent-seeking to the appellate victor?  What a nightmare.

People v. Mahoney (Cal. Ct. App. - Oct. 17, 2013)

I think, viewing the evidence as a whole, that this guy is probably guilty.  Of looking at kiddie porn.  Or at least "kiddie erotica".  (Which is kids in clothes, but with an "emphasis" on their genital areas.  Didn't even know that was a crime.  But it is.)

But go ahead and read the case anyway.  And see whether 95% of the evidence against him might also exist for anyone who looks at adult pornography online.  And/or you.

Sometimes you can't control popups.  If those things ever have illegal stuff in them, you might well be in trouble.  Serious, serious trouble.

In Re Aiden G. (Cal. Ct. App. - Oct. 16, 2013)

Mother clearly has problems.  Moreover, because she has children, her problems are our problems as well.

It's not run-of-the-mill substance abuse problems.  It's serious delusions:

"On August 28, 2012, law enforcement was called to the family home because Mother was yelling at the neighbors, claiming she was going to be the next female president. [Note: I'm confident Hillary Clinton's not too worried about this potential challenger.]  Mother was experiencing auditory hallucinations that were telling her to sing, run through the sprinklers, and lie down in the middle of the street. The minors 'were in the family home at the time of the incident . . . and witnessed the event.' The officers contacted the Los Angeles County Department of Children and Family Services (DCFS) and took Mother to the hospital because they determined she was a danger to herself or others. Mother remained hospitalized for two weeks. Mother later claimed the hospitalization was a 'mistake' because she did not do anything wrong. She was again hospitalized in September for two weeks when she claimed to have supernatural powers, danced around, acted bizarrely, and claimed she was Jesus. [Note: Ditto for Jesus.]

Mother subsequently failed to keep her psychiatric appointments and did not take her psychotropic medication, denying she had a mental illness and claiming her only problem was insomnia. . . . On November 30, 2012, DCFS reported the following. Mother stated she 'had a special gift from God and she was able to hear other people's conversations' and sometimes the people she spoke to said bad things about her. Mother said she recently started taking her medication because she had a conversation with President Obama, who had convinced her to take them. [Note: That's nice of Barack.]  Mother had one 'suicidal episode' where auditory hallucinations ordered her to take pills and kill herself, but Mother stated 'she had the pills but did not ingest them.' In the presence of the minors, Mother had attempted to stuff a piece of paper down Father's throat, saying he was a 'monster.' Father failed to take action for fear of escalating the situation; he was afraid to confront Mother about her delusions and hallucinations, and feared for the safety of the minors if they were left alone with her. Father and Mother were initiating divorce proceedings, which 'raises the
level of stress for both parents.' . . .

On November 30, 2012, DCFS filed a section 300 petition on behalf of Aiden and Elizabeth, alleging under section 300, subdivision (b) that Mother had mental and emotional problems, including delusional behavior, auditory hallucinations, suicidal ideation, and a suicide attempt, which render Mother incapable of providing regular care of the minors; in August 2012, Mother was involuntarily hospitalized for evaluation and treatment; in September 2012, Mother was hospitalized for evaluation and treatment; and Mother failed to take her psychotropic medication.

In December 2012, Mother reported to DCFS that she had special powers; she could channel the dead, who made her laugh; and she had spoken to President Lincoln, the Kennedys, Marilyn Monroe, and Michael Jackson. Mother read from her journal that 'she is the second coming and she must inform everyone.' She denied having ever heard a voice telling her to hurt herself or anyone else, and stated she would never harm her children. On December 27, 2012, Mother's psychiatrist reported that after discontinuing her medication, Mother 'recently became very psychotic with poor insight and judgment.'

On January 3, 2013, Mother told DCFS that '8 years ago' she had been diagnosed with 'persecutory delusion' when she heard people shouting at her at work, saying 'suspicious things,' calling her on the telephone and hanging up on her. She stated that she had been seeing a psychiatrist for six years and had been taking medication for schizophrenia, but she had been misdiagnosed. She claimed her only problem was insomnia, and she did not want the doctors to continue to misdiagnose her. She denied she had suffered from suicidal ideation when she had lain down in the street. She claimed she was having a 'spiritual experience,' not a 'psychological experience,' and that she had looked both ways before she lay down. Mother had no idea how long she remained on the street. When asked what kind of spiritual experience she was having, 'Mother refused to go into detail,' saying it was hard to explain. Mother also reported she was complying with her medication and psychotherapy because she did not want to lose the minors. Although she claimed that she did not hear voices anymore, she also stated that 'her God given talent [is] that she can hear people speak' and she has 'angelic and spiritual ability.' Mother was divorcing Father because he did not have the same spiritual beliefs. Mother said she was talking to 'the people that talk[] to her' about her current situation and they had been giving her advice. . . .

DCFS filed an ex parte application and order pursuant to section 385, stating that on January 17, 2013, DCFS received a telephone call from Bellamy, who reported that '[M]other was acting very bizarre, . . . [M]other was very agitated and was claiming that she is Jesus and Obama was her lover and speaks to her. Mother was acting very delusional and was not taking her medication.' DCFS reported that Father had been
advised by Bellamy to sleep in the bedroom with the minors and keep the door locked. On January 25, 2013, DCFS reported that Mother would not be discharged until at least February 6, 2013, her 'psychological condition had decompensated greatly, and . . . [she] had refused medication, until only recently.' . . .

On February 15, 2013, the date of the adjudication hearing, Mother requested to represent herself and waived her right to counsel. . . . Mother made her closing argument, sometimes referring to herself in the third person, stating that President Obama had chosen her to represent herself, she 'has never been mentally ill,'
and 'she has been misdiagnosed for eight years, and I'm doing this to try to protect her.' She stated, 'I have chosen this woman because she is respectful. . . . [¶] . . . Other people know that I am representing them today, that is, all of the people who are sitting in the lobby outside.' She argued that 'God believes in me, and that is why Obama is going to call right now and tell you that this woman is telling the truth. And the truth is she is not psychotic. She is not schizophrenic. She is not bipolar. She is not schizoaffective, and she's not even delusional.' She stated, 'And now it's my turn to contact you, the judge, to tell you that I am President Obama, and I speak through Caroline [G.], and she is a woman of honor, and she is a woman crying in front of you because her children were taken away from her because people thought she was psychotic, and it is the furthest from the truth because this woman is a professional woman who has worked hard all of her life.'

The juvenile court asked Mother, 'When you stated that you are Obama speaking now through Ms. [G.], are you using that as a metaphor, or should I take that to be that those are President Obama's words just through your physical body?' Mother replied, 'I am a medium, and people speak through me, including President Obama. He speaks through me because I am the chosen one, and people chose me to do this. And I didn't choose it. Someone chose it for me.'"

Scary stuff.

Couldn't possibly happen to anyone you know?  Caroline wasn't lying when she said that she was "a professional woman who has worked hard all of her life."  She's also got a nanny.  Living the big life in L.A.

This is not your classic crackhouse dependency case.

The delusions are far from typical either.

People v. Burkett (Cal. Ct. App. - Oct. 15, 2013)

Justice Raye says in this case:  "[I]n the law of burglary what seems plausible often is not."

Truer words were never spoken.  The law of burglary -- especially in California -- is so far afield from what one would initially conceive that it's hard to fathom.  So, yeah, these cases are hard.

As for the merits, I'll let Justice Raye's opinion and Justice Nicholson's dissent largely speak for themselves.

The basic facts are straightforward.  X lives in House, and then moves to Other House and rents to Y.  Y then moves out of House -- vacating it entirely -- and X plans to (but has not yet) moved into House from Other House when Defendant enters House and steals wires and the like.  Is that first-degree burglary or is it second degree?  Which is to say:  Is the house "inhabited" or not?  After all, no one currently lives there.

Justice Raye says no.  Justice Nicholson says yes.

I would nonetheless pose one hypothetical to Justice Nicholson.  Same facts as here.  But X plans to move into House not in a week or two, but in a year or two.  Or a decade or two.  Same result?  After all, House is equally vacant -- yet owned and occupied in both the past and future by X -- in all such scenarios.  So the result should be the same, right?  Yet it seems absurd to say that a home vacant for twenty years nonetheless is inhabited.  Justice Nicholson concludes his dissent by saying "Noor said that, at the time of the burglary, he intended to move into the house in the near future. To me, that, combined with the fact that he had lived there before, made the house an inhabited dwelling." (emphasis added).  But while the "near future" caveat avoids by hypo, it's both unexplained and seemingly unprincipled.  Seems to me you have to embrace the horror.  Otherwise Justice Raye's contrary principle might be a brighter-line rule and/or superior in terms of policy and intent.

None of which is to say that figuring out what counts as burglary in California is easy.  And/or makes sense.  Since it's anything but.

Ventura Kester v. Folksamerica Reinsurance (Cal. Ct. App. - Sept. 11, 2013)

I've got a strong sense that the vandalism here didn't, in fact, cause the plaintiff to lose any tenants.  But a reasonable jury could perhaps conclude otherwise.  As the Court of Appeal holds.

More importantly, I completely agree that an insurance policy that insures against "lost rents" does not pay out only if there's an existing tenant.  If an event means that the place can't be rented in the future, that's an element of damage.  If an insurance company doesn't want to cover that, they can say so.

And, perhaps, in the future, will.

Only causing people to hate insurance companies even more than they do already.

Hunton v. Sinclair (9th Cir. - Oct. 11, 2013)

Judge Fernandez writes an opinion.  Judge Fletcher dissents.

One of these judges cites and relies to a fair degree on an opinion by Justice Scalia.

But it's not the one you'd think.

By contrast, the opinion by one of these judges contains the word "floccinaucities".

Yes.  That's the judge you'd think.

U.S. v. Ramos-Atondo (9th Cir. - Oct. 11, 2013)

Sometimes, even if you have outstanding attorneys, you're just guilty, guilty, guilty.  So there's very little anyone can do.

Like here.

Defendants were not caught dead to rights.  But they nearly were.  That panga boat full of marijuana on the beach in San Clemente?  That's yours.  Getting two of the participants to flip was the nail in your (figurative) coffin.

Sometimes that's the way the cookie crumbles.

People v. K.C. (Cal. Ct. App. - Oct. 11, 2013)

This is a really nice compromise.  As well as equitable.

The Court of Appeal holds that a court can't tranform a restitution order into a civil judgment if a minor is successfully completes informal supervision, since in such circumstances he's never actually made a ward of the court -- which is required under the statute in order to create the civil judgment.  That seems right.

At the same time, the trial court was right that it's crazy to say that a court can order restitution (which it clearly can) and yet not actually require that it be paid.  So the Court of Appeal holds that, yes, informal supervision precludes transformation into a civil judgment.  But that when a minor, as here, agrees to informal supervision, he may well (as here) be estopped to complain about the civil judgment part.

In short, you can object to having a civil judgment entered.  But if you do, then the court's not going to order you to informal supervision.  Which means you're never going to object.

Creative.  Equitable.  Nice resolution.

People v. David R. (Cal. Ct. App. - Sept. 10, 2013)

The California Court of Appeal hasn't published anything yet today.  And the Ninth Circuit's opinion site has been spotty:  I haven't been able to get it to load thus far.  So yesterday I blamed my employer, and today, I will blame the courts.

In the meantime, let's ask a difficult epistomological question:  How does one decide whether a 13-year old child had sufficient "malice" in his heart to qualify under the arson statute?

Do 13-year olds play with lighters?  Yes.  Do they light things on fire?  Certainly.  When they do so, and a building burns, can we really say with any degree of certainty that they "intended" to burn a building?

Perhaps.  Sometimes.

Read this opinion, in which the Court of Appeal holds that malice was sufficiently established.  See if you agree.

Trying to look into the hearts and minds of children is far from an easy task.

Chapman v. Skype (Cal. Ct. App. - Oct. 4, 2013)

We had a "California snow day" at work today.  Normally that'd be an earthquake.  But today it was because the University of San Diego was without electricity.  So classes were cancelled until 2:30 p.m.  Which meant that professors who (like me) had classes at 10:00 a.m. and 1:00 p.m. got to go home early.  Woot!

Of course, it also meant that I could do virtually nothing of substance at the office.  No lights.  No computer.  No internet.  No e-mail.  Nothing but natural light and the solitude of one's own thoughts.  So I cleaned my office.  Then went home.

The Ninth Circuit may have had a similar experience.  Since they didn't publish anything today either.

But at least the California Court of Appeal did a little work.

Reversing the trial court, the Court of Appeal holds that, yes, it may well be deceptive for Skype to advertise that it offers "unlimited" calls to the U.S. and Canada (as well as elsewhere) when, in fact, these services are manifestly limited to six hours a day, fifty numbers per day, ten thousand minutes a month, etc.

I'm fairly surprised that the trial court held otherwise.  So am glad to see the Court of Appeal reverse.

Sure, Skype drops a footnote when it says "Unlimited" that says that "a fair use program" applies to the service.  But you've got to then click on yet another page to find out that the "fair use" policy turns the "Unlimited" program into a clearly "Limited" program.

That's not fair.  Or at least a reasonable juror could so find. And I think that's exactly right.

Skype could easily have called it a "Virtually Unlimited" program.  But you and I know full well why it didn't do so.  Because that accurate description is less compelling than the one it elected to employ.

So this putative class action gets to go forward for now.

U.S. v. Cortes (9th Cir. - Oct. 9, 2013)

The Ninth Circuit reverses.  Which can't make the district court (Judge Benitez) especially happy.  But Judge Silverman's opinion simultaneously says that the district court was in a tough position.  That the instructions here were nearly accurate.  That the district court didn't have the benefit of subsequent precedent.  That the Ninth Circuit's cases on the relevant issue were themselves confusing.

And then Judge Silverman bothers to repeatedly formulate -- and write down -- the proper instructions that should be given at the retrial on remand.  Verbatim.

Too many judges are either (1) mean, or (2) unwilling to take the time to craft practical guidance (e.g., jury instructions) for the district court.  Bravo to Judge Silverman for doing otherwise.

Wong v. Beebe (9th Cir. - Oct. 9, 2013)

Today's en banc decision says in a footnote:

"Marley [v. United States, 567 F.3d 1030 (9th Cir. 2008)] dismissed Alvarez-Machain I as having 'no precedential value' because the panel opinion in that case was vacated and the case was taken en banc. See Marley, 567 F.3d at 1037–38 (citing Alvarez-Machain v. United States (Alvarez-Machain III), 284 F.3d 1039 (9th Cir. 2002)). But the opinion that was vacated by Alvarez-Machain III was not Alvarez-Machain I. Rather, it was a different opinion in the same case: Alvarez-Machain v. United States (Alvarez Machain II), 266 F.3d 1045 (9th Cir. 2001). Thus, Alvarez-Machain I was still good law when Marley was decided. The result was an intracircuit conflict, which we can resolve only through en banc proceedings. See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478–79 (9th Cir. 1987) (en banc)."

That's a bit embarrassing for Judge Graber, who wrote Marley.  It's also a little bit embarrassing for the entire court, since a judge requested an en banc vote in Marley, but it failed.  Apparently the court now recognizes that the vote should have gone the other way.

Chief Judge Kozinski writes another classic Kozinski concurrence.  Including paragraphs like the following:

"We owe Wong the benefit of our compassion and creativity. After all, had the district court acted on her motion within the section 2401(b) six-month period, she wouldn’t be in this fix. But the court took more than seven months to act on this routine motion—a delay Wong didn’t cause and couldn’t have foreseen. The government suggests that, instead of waiting for the district court to act on her motion, Wong should have refiled it. Yeah, right. How many litigants have the nerve to vex a federal judge with a clone motion while the original is still pending? Bad things can happen to those who twist the tiger’s tail. See, e.g., Nugget Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 981 F.2d 429, 439 (9th Cir. 1992) (affirming imposition of sanctions for filing duplicative motions). Instead, Wong used her reply sensibly: She reiterated her request to amend, advanced new arguments in support of that request and pointed out that the court had acquired jurisdiction to grant it. To treat Wong’s document as a legal nullity because she called it a reply rather than a motion is inequitable and nonsensical. I thought we had abandoned such pedantry in 1938."

[I'll note in passing that the district court judge who sat on the motion for seven months is senior judge Robert Jones in Oregon.  And add that there's a real problem with some judges sitting on motions forever.  Not only in Oregon.]

Chief Judge Kozinski also has this line, however, which I don't understand:  "But even if it were novel, so what? Novelty is not an enemy of justice; we’re judges, not plumbers."  I agree with him about judges, but disagree about plumbers.  Seems like he's saying that it's not good for plumbers to be creative.  Not sure where that comes from.

Gonzalez v. Santa Clara Dep't of Social Svcs. (Cal. Ct. App. - Oct. 8, 2013)

This opinion should get a lot of play from the social conservative crowd.  If anyone notices it, anyway.

It's a classic childrearing problem.  At least in the modern era.  What do you do with your kid if she starts going down the wrong path?

Let's hear from the parents.  Here's how they describe the problem:

"Mother and her husband (Father) had become gravely concerned about Daughter’s declining academic performance and alarming social tendencies. As Father put it, Daughter 'had decided that she did not have
to do her school or home work, repeatedly lied to both of us, [and] started showing interest in gang culture.' Mother declared that Daughter had become 'boy crazy and started to mingle with a new type of crowd,' and that they had found pictures and text messages on her mobile phone 'in reference to gangs.' They 'had many discussions' with Daughter about these developments, but to no avail: 'She would hear us yet continued to go down this road . . . . [S]he began saying that her favorite color is red . . . . [S]he was not doing many of her school and homework assignments and even her teachers expressed . . . annoyance with her disregard for her work. We also discovered that [Daughter] had been lying to us about completing assignments and had been hiding test[s] with low scores that were supposed to have gotten signed by us.' Daughter’s older sister (Sister) also declared that Daughter’s 'interest in gangs seemed to be growing.' She 'started to become very irresponsible in school by being late to classes, having really bad grades because she was doing hardly any of her school and homework, was lying to my parents about lots of things, and started hanging around wanna-be gangster kids at school."

The daughter doesn't seem to disagree.  She testified:  “I have to admit, for a long time, starting in 6th grade, I was always getting to class late, not doing my school assignments, and lying to my parents.”

So, as a parent, what do you do?

You try the usual stuff, of course.  Let's see how that works out.  As Mother explained:

“[A]fter a few weeks of grounding when [Daughter] would get off of restriction she would do better for a short time, but then revert back to the same behavior, over and over. We would go through several sessions of groundings over several months, hoping it would finally make the difference, but grounding proved to be ineffective at setting [Daughter] back on the right path. At this point, we did not know what else to do
to help [Daughter]."

Even Daughter seems to have agreed.  Her words:  “When I first started doing all this, my parents grounded me many times, by taking away all my fun stuff like my iPod, my T.V., my cell phone, and I was not allowed to hang out with friends. I don’t know why that stuff didn’t work on me, but I continued to not do what I was supposed to.”

Geeze.  What to do?

So in this case, here's what the parents did:

"We talked again, and felt that the only other option out there, would be to try spanking. So the weekend before the incident in question, my husband and I sat [Daughter] down and explained to her that, since she kept lying to us repeatedly about completing assignments, she now needed to get her agenda signed by each teacher so we could be sure she was really doing all of her work. We also informed her that if she continued with this irresponsible behavior, [such as] not doing her assignments, being late to class and lying to us, she would start to receive one spank on the bottom for each thing not done."

Oh boy.  Spanking.  A hot button topic.  Particularly in California.

So here's what happens next:

"According to the Mother, on each of the first three days of the new regime Daughter came home without having 'complet[ed] her tasks.' This resulting in her being spanked by Father 'with his hand, only on the buttocks, fully clothed, and in a calm manner.'"

Okay.  That's the familiar form of spanking.  You can agree with it.  You can disagree with it.  But it's surely within what existing law reflects -- rightly or wrongly -- as a parent's right.

So then what happens?

"When Mother picked Daughter up at school on Thursday, April 29, 2010, she had again failed to comply with her parents’ directives. She gave implausible excuses, a further violation of parental orders. Mother called Father 'and told him that [Daughter] still wasn’t doing her work and was late again, and that he needed to come home and deal with this. He told me he wouldn’t be home until late that evening and that I needed to handle it, or else [Daughter] would not respect me or take me seriously as a parent. Because of my hand condition, he said I should just use a wooden spoon. I told him that I’d rather he just spank her when he gets home from work, but he insisted that I should handle it. I finally agreed and told [Daughter] that I would have to be the one to spank her this day and that I was going to use a wooden spoon because my hands hurt.' Father also declared that the idea of using a spoon had been his, and had arisen from the exigency of his not coming home until 'very late that evening.'

Mother declared that upon arriving home, she retrieved a wooden spoon and 'gave [Daughter] around five or six spanks on the bottom, one for each thing not done and for making excuses. [Daughter] was fully clothed during the spanking. She was not crying or screaming during the spanking.' Family members declared unanimously that spankings had been a rarity in the family, that they had only been given in response to misbehavior, that they were never given in the heat of anger, and that they were almost always given by Father, and always with an open hand."

Can you figure out what transpired next?  Of course you can:

"On the next day Daughter disclosed to some friends that she had been spanked with a wooden spoon. One of them reported, or 'tricked' Daughter into reporting, the matter to school authorities. [Footnote 2: Daughter declared without contradiction, 'I did tell one of my classmates, J[.], that I got spanked . . . . She tried to convince me to tell the office, but I told her that I didn’t need to or want to. J[.] took me to the school office to tell them that I got spanked, but I didn’t know she was going to do that. She tricked me into going with her by saying she needed to pick up her sweater because she was cold.'']  An unnamed 'mandated child abuse reporter[]'—manifestly a school employee—filled out a 'suspected child abuse report.' Under '[i]ncident [i]nformation,' the reporter wrote, 'Victim says she gets ‘smack’ by parents when she is not doing what parents are expecting from her. She said Mom hits her with a wooden spoon and Dad hits her with his hand. Last time she was hit was on 4/29/10 on her botto[m] / picture was taken.'"

Social worker comes to school.  Daughter tells spanking stuff about parents, and it sounds bad.  Police get called.  Social worker fills out child abuse reporting form, and concludes that child abuse was substantiated, so parents get placed on the state Child Abuse list.  Parents appeal, hearing officer affirms, commissioner affirms, then parents file a writ in court.

So if I were writing an inflammatory headline:  "California Holds Spanking Child Is Child Abuse!!"

Of course the actual facts are slightly different.  Plus there's the fact that the Court of Appeal reverses.  Holding that the discipline here was not "child abuse" under the relevant Act, but was instead part of a parental privilege.  Or at least could have been parental privilege:  "We cannot say that the use of a wooden spoon to administer a spanking necessarily exceeds the bounds of reasonable parental discipline."  Even if, as here, it leaves a bruise.  ("Nor do we think that the infliction of visible bruises automatically requires a
finding that the limits of reasonable discipline were exceeded. . . . However, such effects alone do not compel a finding of child abuse.")  Though the Court of Appeal thinks that's pretty darn close to the line.  ("We believe that visible bruising demarcates, or at least very nearly approaches, the outer limit for the quantum of 'damage' to be tolerated. However, we do not believe that it necessarily compels a finding of abuse unless there are grounds to find that the parent intended to inflict bruises, knew his or her conduct would do so, or should have known that bruises were likely to result from the amount of force applied and the method of its application.")

But here, since there was no alleged bruising previously, nor any evidence of an intent to bruise, there's no ability to put the parents on the CACI.  Not child abuse.

This opinion would have looked markedly different 100 years ago.  I wonder what it would look like 100 years hence?

In the meantime, a very neat little case.

People v. Watson (Cal. Ct. App. - Oct. 8, 2013)

Bad cases make for bad opinions.

I can see why Justice Benke gets a bit strident.  Julie Watson was driving drunk -- with a BAC of .17 or .18 -- at 60 miles an hour.  At 11:30 p.m.  Without headlights.  On sand dunes.  She hits a 15-year old who's also riding on the dunes and severely injures him.

That's bad.  Really bad.  Something to be upset about.

What's at stake here is how much Julie has to pay in restitution.  She offers a really, incredibly lame expert (a retired CHP officer) who says that the victim was 20 to 25 percent at fault.  The trial judge decides not to reduce the restitution award for comparative negligence, so orders Julie to pay the full amount of the victim's medical bills:  a little under $100,000.

All of that makes sense.  Justice Benke's correct, in my view, that a trial court isn't required to apply comparative fault principles at the restitution stage.  It could if it wants.  But especially here, where the perpetrator has committed a fairly dangerous crime and the victim's purported negligence is very low, I think it entirely within the trial court's discretion to order full restitution.

Justice Benke's opinion says the same thing.

Her opinion is nonetheless much broader, and much more aggressive, than that.  Her opinion says that this isn't one of those "exceptional" cases in which applying comparative fault would be proper.  She includes a great deal of analysis that's profoundly critical of applying comparative fault in the restitution context.  Her opinion reads -- and perhaps accurately reflects her belief -- that courts should almost never reduce restitution awards for the comparative negligence of the victim.  That's for civil courts, not criminal courts.

That's where Justice Benke and I part ways.

I agree that trial courts don't have to apply comparative negligence principles.  But I'm perfectly happy for them to apply it as well.  Very much up to them, in my view.  In cases like this one, I definitely could see not reducing the award.  But even here, were it true that the victim was a quarter or so at fault for the accident, I would have abolutely no problem slicing the restitution down to an appropriate amount.  For the exact same reasons we do so on the civil side.  Even when, as here, there is negligence per se.

For me, it doesn't at all need to be an "exceptional" case for restitution orders to apply comparative negligence principles.  Criminal restitution orders are already permissibly incredibly broad.  If a trial court, in its discretion, decides that the defendant is only partially at fault, I have no problem with the restitution order reflecting this reality.

So I'm okay with the result here.  But nonetheless think that the rhetoric (and resulting holding) of the opinion goes a bit too far.

City of Bell v. Superior Court (Cal. Ct. App. - Oct. 4, 2013)

I'd critique the Court of Appeal for totally reaching out to decide this case.  But I'd have wanted to do the exact same thing.

The issue is whether Robert Rizzo, the former (and now disgraced) Chief Administrative Officer of the City of Bell, is entitled to a defense from the City for the many civil and criminal actions that are pending against him based upon his alleged looting of the City.  The trial court held that, yes, he's entitled to a defense.

The City filed a writ petition (since the relevant cases are far from over) on a very narrow issue:  whether the City was entitled to a jury trial (rather than a bench trial) on the various coverage claims.  But the Court of Appeal clearly was thinking more broadly.  It ordered supplemental briefing on a plethora of different issues, most of which dealt with whether Rizzo was even entitled to a defense in the first place.  And then issued a published opinion that held that he wasn't.

All in less than seven months.  From soup to nuts.

Justice can be pretty speedy when the Court of Appeal knows what it wants to do.

Hamad v. Gates (9th Cir. - Oct. 7, 2013)

I can't really object to the legal reasoning of this opinion.  It seems correct.

But I don't think I adequately fathomed the depths of contemporary governmental power until I read it.

I knew the United States government could blow you up with a missile if it thought -- right or wrong -- that you were an enemy combatant.  No need for a trial or anything like that before you're killed.  I also knew they could put a hood on you, incarcerate you, subject you to rendition, and put you in Guantanamo for (in all practical effect) forever.  Sure, you could try to get a trial, or a military commission, or maybe (thanks to the Supreme Court, and no thanks to Congress) even habeas relief.  Good luck.  In the meantime, they can strip you naked, pile you up in a pyramid, deprive you of sleep, waterboard you, do all sorts of stuff to your genitals, and your dream will simply be to eventually get out of the place.

All that I understood.

The thing I didn't completely understand is how utterly, completely powerless you could be even if you got out.  Maybe I'm so used to traditional notions of justice that I fail to comprehend the reality that exists when undeclared wars against unseen enemies persist essentially forever.  Because in the back of my mind, I had a sense that the government -- and I'm not saying this actually happens -- deliberately decided to kill you, or to torture you, all the while declaring you an unlawful combatant even though it knew you weren't, you could at some point eventually sue them.  That'd be small solace while you were having your nether regions pounded (or whatever), but maybe it'd nonetheless be some solace.  If only in retrospect.

Of course I knew that there was such a thing as sovereign immunity.  Of course I knew that your position might not be so strong if you weren't a U.S. citizen.

But I also knew that there was a Constitution.  Surely you can get some relief -- relief in the form of damages -- in the event the government does something incredibly, brutally, undeniably shocking to you, right?  If your rights are violated, aren't you entitled to some relief beyond simply having it stop?

No.  No you're not.  Not in the slightest.

Maybe I'm just too deep in the weeds on this one.  Maybe I've commodified rights too much.  Maybe I should be satisfied with a judicial system that says that even though we're a democracy, we can do terrible things and as long as we at some point stop, everything's good.  No apology.  No damages.  Nothing.

But I'm nonetheless left with a feeling that such relief is hollow.  Better than nothing.  Better than keeping you in the illegal confinement and/or torture and/or whatever you had to do through.  But not as good as actually doing something on your behalf.  Something that, in some small part, tries to make things the tiniest little bit closer to even.

But that's not required. We can do it if we want.  But we generally don't.  At least not for someone who we've declared an enemy combatant.

I wish I could say that it's a brave new world.  But in many ways it's not.  This is what sovereign immunity naturally means.  And I don't think I previously understood it as concretely as I do today.

Yee v. Chung (Cal. Ct. App. - Oct. 3, 2013)

This case correctly interprets and applies precedent.  Plaintiff files a malicious prosecution suit, claiming that defendants filed a lawsuit against them without probable cause.  Defendants file an anti-SLAPP motion that seeks to dismiss the lawsuit.  The trial court grants it, and the Court of Appeal affirms.

There's no doubt that the lawsuit arises from the right to petition; i.e., stage one of the anti-SLAPP test.  The question is purely whether plaintiff has demonstrated a probability of success.

The trial court and the Court of Appeal both hold that, as a matter of law, plaintiff didn't do so.  On the ground that the trial court in the underlying action denied the defendant's motion for nonsuit.  Since the trial court thought there was enough evidence to get to a jury, by definition, there was probable cause.  So the malicious prosecution suit gets dismissed.

That's indeed what I think California precedent holds.

But let me nonetheless offer a critique of this position.

As an outsider, I think there are two serious problems with this doctrine.  The first is a super geeky one, but simultaneously a doctrinally very serious one:  res judicata.

What the Court of Appeal is basically saying is that we're going to give issue preclusion to the trial court's finding that there was sufficient evidence to reach the jury.  Okay, that's fine.  After all, it was indeed actively litigated and actually decided.  But normally, we only give preclusive effect to issues that were fully and fairly litigated.  Moreover, since we know that single judges sometimes make mistakes, we count as "fully" litigated only those things that are subject to appellate review.  For example, if plaintiff sues defendant for negligence, and the jury finds both that the defendant was negligent and that plaintiff was negligent -- and thereby enters judgment (in a pure contributory negligence jurisdiction) for the defendant -- even though the jury actually and finally decided that the defendant was negligent, we do not invest issue preclusion in that finding.  Why not?  Because it wasn't subject to appellate review.  Defendant won the lawsuit anyway.  As the winner, it couldn't appeal the adverse finding.  As a result, as a doctrinal matter, we're insufficiently confident in the validity of the jury's finding about defendant's negligence to give it preclusive effect.  That issue was not able to be "fully" and finally litigated.  So even at the cost of efficiency and other downsides, we deny preclusive effect.

That same principle seems equally applicable to me in the present case.  Defendant moves for nonsuit.  The motion gets denied.  But the jury then finds in favor of the defendant.  Defendant in that setting does not have the ability to challenge the denial of its nonsuit motion.  It won.  There's no standing.  No injury.  Given that reality, why do we give this finding preclusive effect?  It seems flatly inconsistent with the normal requirement that preclusion be granted only to fully litigated findings.

The second problem is perhaps somewhat related to the first, but is more a practical than doctrinal issue.  Imagine that you're a trial judge.  Plaintiff's put on his case.  You think it sucks.  Your gut tells you it's not legally sufficient.  Defendant predictably moves for a nonsuit.  You're thinking about whether or not to grant the motion.

If you grant the motion, the standard on appeal is very strict against you.  You might well be reversed.  The practical effect of which will be to waste everyone's time and money.  Threefold.  An appeal, a new trial, a new jury, etc.

By contrast, what happens if you deny the motion?  You think plaintiff's case is terrible.  So terrible that it's insufficient as a matter of law.  Don't you think the jury -- who's hearing the same evidence as you -- will likely come to the same conclusion?  Especially since the standard for their decision is much more weighted in favor of the defendant:  you've got to decide if the evidence is legally insufficient, whereas they only have to decide whether plaintiff has established its case by a preponderance of the evidence.  If the evidence is near (or at) zero, isn't it likely that the jury's going to decide the case the same way you would?  Even more so?

Why not give the jury the chance to get it right?  The jurors will be happier.  It'll only take a little time.  And the resulting verdict will be much more likely to be upheld on appeal, since the deference given to a verdict -- as opposed to a nonsuit -- is so much greater that it's not even funny.  Indeed, whereas your granting of a nonsuit will almost certainly be the subject of an appeal -- one that consumes resources of both sides -- if a jury decides the case, that'll almost certainly end it once and for all.  No way the plaintiff's going to appeal an adverse jury verdict.  Won't even try.

So why not just deny the motion?  Doesn't that make eminent practical sense.  Especially since even if you're wrong about the jury's ultimate decision, there's totally no downside.  You can just grant a j.n.o.v. at that point.  A motion that's substantively identical to the pending nonsuit motion.  The only difference is timing and the potential to obtain an infinitely superior verdict from the jury itself.

I'm not the only one that thinks this way.  Judges routinely deny nonsuit motions on precisely such practical grounds.  Whether they expressly say so or not.  Every single j.n.o.v. motion that's granted was previously a nonsuit motion that was denied.  What changed?  Absolutely nothing.  Same evidence.  Same judge.  Same everything.  Almost always, the judge simply wanted to give the jury a shot.  For eminently sensible reasons.

This practical reality is yet more reason not to give the denial of a nonsuit motion preclusive effect.  Especially since, as noted above, there's no way to test the legal validity of the trial judge's decision not to grant nonsuit motions if and when the defendand prevails anyway.  Defendant won.  They can't appeal.  We simply cannot litigate in the underlying case whether the trial court was right that the evidence was insufficient.  Or even if that's what he actually thought, was opposed to letting the case go.

I mention this both because I think it's true as a general matter and also because there's some reason to think that that's what may have transpired here.  When the defendant moved for a nonsuit, the trial judge said:  "Well, okay, at this point, the court is supposed to give plaintiff the benefit of the doubt on the evidence. And viewing the evidence in the light most favorable, I think there's enough there to let it go past this point."  My strong sense is that the trial judge's comments reflect that he didn't particularly think plaintiff's case was all that strong, and that the jury would likely find for defendant.  Sure, maybe Judge Taylor thought that there was sufficient evidence.  But maybe he was also thinking:  "It's a tough legal standard.  Why risk reversal?  A result that doesn't benefit anyone.  I'll just let the thing go forward for now."

And, if so, he was right.  Jury found for defendant.  Exactly as predicted.

I know we don't like malicious prosecution cases.  But there are no special res judicata rules that make the normal principles inapplicable therein.  There's a profound tension between the usual full and fair opportunity to litigate cases and cases like this one.  I'm just not sure that results like the one here are tenable on any but the most unprincipled, results-oriented grounds.

GetFugu v. Patton Boggs (Cal. Ct. App. - Oct. 2, 2013)

You can't litigate matters in the press.  That's not shielded by the litigation privilege.  So the granting of the anti-SLAPP motion here gets reversed.

That said, I would still rather be Patton Boggs than the plaintiff.  The tweet's clearly opinion, so it's protected by the First Amendment.  Some of the factual statements in the press release are true and/or opinion as well.

As the Court of Appeal holds, a portion of the release may contain allegedly defamatory facts.  As a result, given the state of the evidence below, the anti-SLAPP motion should have been denied in part.

But once we hit summary judgment time (and surely by trial, if it ever gets there), Patton Boggs is looking pretty darn good.  Since it looks to me like the factual claims are substantially true.

But for now, at least, a portion of the lawsuit survives.

Kurwa v. Kislinger (Cal. Supreme Ct. - Oct. 2, 2013)

There was no doubt about how this one was going to come out.  At all.  At least by anyone who knows anything at all about these sorts of things.

The trial court essentially dismisses several of plaintiff's causes of action, which get bounced with prejudice, but there are other causes of action (e.g., defamation) that remain.  The parties don't want to bother with these secondary claims, but at the same time, plaintiff doesn't want to waive them either.  Particularly if the main claims get revived on appeal.

So everyone agrees to dismiss the remaining causes of action without prejudice and to waive the statute of limitations with respect to them.  That way, if the case gets reversed on appeal, everything's back to where it once was.  Otherwise it's all gone.

You can see why the parties do that.  It may well make eminent practical sense.

The problem -- as the California Supreme Court unanimously holds -- is that you can't do that.  There's a one final judgment rule.  When you dismiss part of the case without prejudice, especially when you've also waived the limitations period, the case isn't over.  Part of the case may well be over, but part of the case is in what we call the "netherworld".  It still exists.  It hasn't been dismissed with prejudice.  So you can't appeal. You can file a writ (and good luck with that; enjoy the postcard that you'll get in response).  But you can't manufacture an appeal as a matter of right.  That's the rule.  Notwithstanding the contrary holding of the Court of Appeal.  Reversed.

Of course that's the rule.  It's been the rule forever.  There was no doubt whatsoever that the California Supreme Court would so hold.  One case.  One appeal.  Done.  Can't do what they tried here.  Doesn't work.

I'll nonetheless make one comment.  One that doesn't detract from the fact that this was a no-brainer.  But that nonetheless might make one think twice about this otherwise straightforward opinion.

California routinely interprets the one final judgment rule a lot more liberally than other jurisdictions.  That's been the case for a long, long time.  For example, in California, class certification decisions can be appealed as a matter of right under the "death knell" doctrine.  Not true in federal court, or in a lot of other states.  Similarly, in our great state, the dismissal of one defendant is immediately subject to appeal even if other defendants remain.  Not so elsewhere.

In a plethora of ways, California is eminently more practical -- more attuned to the economic realities of modern litigation -- than other jurisdictions.  You especially see that in the exceptions we've created to the one final judgment rule.  We're flexible.  We allow lots of appeals that other places do not.

So when the California Supreme Court says, as it does at the end of its opinion, that its hands are tied -- that "California law provides no case-by-case efficiency exception to the one final judgment rule for appealability" -- I think you should take that claim with a grain of salt.  We've done a lot of things in this area either as an evolution of the common law or as an interpretation of what it means to be a "final" judgment.  So even if the result of the present case is preordained as a practical matter -- because I have a keen sense of the Court's feelings on this point -- it's not actually preordained.  The California Supreme Court could have come out differently.  It could have made an exception.  It could have done so legitimately.  It simply decided not to.

That may perhaps be the right rule.  But we should be honest about what it is.  It's a policy choice.  Our hands are not tied.

And we're not alone.  Yes, the California Supreme Court notes that some other courts (e.g., federal courts) have particular statutes or rules that create particularized exceptions from the one final judgment rule, and that we don't have those.  But guess what else federal courts -- like all other courts -- have?  The ability to interpret what a "final judgment" is.  A term that's indisputably of no fixed meaning.  That's flexible.  (Don't believe me?  Look at 28 USC 2072(c).  The Supreme Court is expressly allowed to decide what counts as "final" for purposes of the federal statute governing appellate review.  Something that it did even before the enactment of 2072(c) anyway.  If the Supreme Court can do it, so can the California Supreme Court.)

So the result here is not surprising.  But let's not pretend the Court's bound.  It's not.

Baker v. Halliburton Energy Svcs (Cal. Ct. App. - Oct. 1, 2013)

One of the downsides of writing your opinion before oral argument is that you're not especially able to incorporate recent developments into your analysis.

Here's a perfect example.

It's another employee coming-and-going respondeat superior case.  Employee.  Auto accident.  Coming or going to work.  Is the employer liable for the accident?

Just a couple of weeks ago, the Court of Appeal decided a case that reversed the grant of summary judgment to the employer in a starkly similar case (which I discussed here).  The employee in that case was driving her personal vehicle to a frozen yogurt store on her way to yoga after leaving work, and the Court of Appeal held that the employer might be liable.  In the present case, the employee's has just finished some similarly personal errands (going to lunch with his wife), but was (1) on his way back to work, and (2) driving his employer's vehicle.  So you'd think the case for employer liability would be even stronger.

Nope.  The Court of Appeal affirms the grant of summary judgment to the employer.

The Court of Appeal drops a footnote that discusses the latest case, which was mentioned at oral argument.  But the footnote merely describes the case.  Doesn't attempt to distinguish it.  Doesn't attempt to say if that analysis is right or wrong.  Just says (essentially):  "Yep, we're aware of it."

I think you gotta do more.  The two cases are sharply similar.  Seems to be one of them's got to be wrong.

As a pair of cases, maybe it's worth taking both of these up to the California Supreme Court.  It doesn't make sense that whether an employer's liable should depend entirely upon what particular appellate panel the parties happen to draw.  And this stuff happens with sufficient frequency -- which is to say, every single day -- that having the Court step in and articulate a uniform rule makes sense.  Taking both cases would also not only highlight the various factual underpinnings of these types of cases, but would also make sure that there's a case on both sides for the Court to consider.

Politics makes strange bedfellows.  Maybe counsel for defendants in Moradi (the earlier case) should get together with counsel for plaintiffs in this case and file coordinated petitions for review.  I think that'd present a pretty persuasive petition.

And my bet's that one of the two parties would obtain a reversal of their loss.

U.S. v. First (9th Cir. - Oct. 1, 2013)

There may potentially be some advantages to being a member of an Indian tribe.

But having the right to counsel in tribal court when you're poor isn't one of them.

You'd be entitled to an attorney anywhere else in the United States.  But not on your reservation.

Sovereign nation.  Fewer rights.

U.S. v. Nickerson (9th Cir. - Oct. 1, 2013)

Just so you know:  When you're in a holding cell, lots of times, they're using a motion-sensitive camera to record everything you're doing.  Everything.  Including using the toilet.

Men can see you. Women can see you.  You probably can't even see the camera, which is hidden.  But when you're in jail, Big Brother is watching you.  Even watching you poop.

This conduct is insufficiently outrageous to warrant a dismissal of even minor charges against you.  Like (as here) a DUI.  So holds the Ninth Circuit.

So add this to the indignities of being in jail.  Even when "presumed innocent" (since you haven't yet been convicted of anything).  Not only may you have to squat in front of onlookers.  But someone -- or a group of people, of all sexes -- behind a hidden camera may also be mocking (and perhaps recording) you while you do so.

Word to the wise.  Go to the bathroom before you commit a crime.