Tuesday, December 30, 2014

Henry v. Ryan (9th Cir. - Dec. 30, 2014)

It starts here with the panel opinion last year.  Then, earlier this year, the panel decided not to reconsider its opinion.  But, several months ago, the case gets taken en banc, over a blistering dissent.  The Ninth Circuit wants to see whether this death penalty case could be affected by a contemporaneous case that has also been taken en banc.

But 2014 ends not with a bang, but with a whimper.  The case gets voted as "related" to the other case, which means the same panel now resolves both.  Argument's then heard in the first case.  And, today, the Ninth Circuit says:  No big deal.

No need to do anything further in this one.  No stay.  En banc proceedings over.  Mandate issues forthwith.

Good luck with the Supreme Court, Mr. Henry.  Because you're getting nothing from the Ninth.

Which in turn means that he should enjoy 2014.  Because he's unlikely to see the end of 2015.

Monday, December 29, 2014

Mann v. Ryan (9th Cir. - Dec. 29, 2014)

Welcome to the new era.

Published opinions get rare around Christmas time for both the Ninth Circuit and the California appellate courts.  But today we get something from the Ninth Circuit.  It's an opinion by now-Chief Judge Thomas, joined by Judge Reinhardt, with a dissent by former-Chief Judge Kozinski.  In a death penalty case, no less.

Can't ask for a much smarter, or more distinguished, panel.  Not surprised to see the lineup, either.

Chief Judge Thomas says that Eric Mann received ineffective assistance of counsel at the sentencing phase (albeit not at the conviction stage) because his attorney failed to investigate -- or present at trial --some pretty huge mitigating facts.  Judge Kozinski, by contrast, says that the Ninth Circuit's at it again, and that the Supreme Court will summarily reverse or Mann will just get his death sentence reimposed on remand.

The latter's certainly a possibility.  So's the former.

As for who has the better normative argument, well, I'll leave that to the authors.  I can't add much more than what's in their respective opinions.

I will say one thing, however.  When you decide to rip off a kilo of coke from a drug dealer by giving him a shoebox full of paper instead of money, I suggest three things.  First, be a good shot.  Mr. Mann had that one covered.  His first shot went straight through the heart of the first guy, and his second shot severed the aorta of the second guy.  Second, have a plan to dispose of the bodies.  Mr. Mann did not initially satisfy this requirement, but he thought up a good one pretty quickly.  He cleaned his house, recovered the bullets, patched the holes, dumped the bodies, and hammered down the guns and ditched them in a lake.

Finally, if you've got a confederate for all of the above, don't piss her off.

That last thing is what tripped up Mr. Mann.

The police searched the house right after the murders, and found the patches, but couldn't definitively pin the murders on him.  So the double homicide when cold.  For four years.

But Mann's girlfriend, who knew about (and saw) the whole thing, eventually got tired of Mann's abuse and took their daughter and moved from Arizona to live with her father in Washington.  And, shortly thereafter, told the police about the crime.

Hence Mann's conviction and presently-vacated death penalty.

The lesson for 2014 is to not commit double murders.  Or, if you do, to be nice to the witnesses thereof for the rest of your life.

Monday, December 22, 2014

San Luis v. Locke (9th Cir. - Dec. 22, 2014)

It's got an 11-page, single-spaced caption!  It's got a four-page "Table of Contents"!  It's 80 single-spaced pages long!  It ends with a two-page "Glossary of Terms"!  It's an environmental case about whether the National Marine Fisheries Service ("NMFS") properly complied with the Administrative Procedures Act ("APA") when it developed its Biological Opinion ("BiOp") to evaluate under the Endangered Species Act ("ESA") the impact of the plans of the Department of Interior's Bureau of Reclamation ("Reclamation") to extract water in California's Central Valley to the possible detriment of the "Delta's endangered Salmonids"!

I can't pitch today's opinion by Judge Tallman any better than that.

Friday, December 19, 2014

Graciano v. Mercury Ins. Co. (Cal. Ct. App. - Nov. 12, 2104)

I agree with the Court of Appeal.  There are plenty of cases in which an insurance company acts in bad faith by failing to timely accept a policy limits demand.  The trial court thought that this was one of them.

But it's not.  The insurance company could have perhaps gotten its act together a little better and perhaps a little faster.  But it acted, in my view, pretty darn reasonably.  Plaintiff's (understandable) effort to set up a bad faith claim worked below.  But even though the insurer wasn't perfect, it was not properly found liable for bad faith.

Check out the facts and see if you agree with me and the Court of Appeal or with the trial court.

Thursday, December 18, 2014

Lennar Homes v. Stephens (Cal. Ct. App. - Dec. 18, 2014)

Pigs get fat.  Hogs get slaughtered.

Lennar Homes of California learns that lesson today.

It put an incredibly onerous "indemnity" clause into its contract of adhesion with its home buyers, and then tried to enforce that clause to force a named plaintiff in a class action suit against it to pay all of Lennar's attorney's fees.

The trial court granted the home buyer's motion to strike Lennar's indemnity action under the anti-SLAPP statute, and the Court of Appeal affirms, finding the clause unconscionable.

So now Lennar has to pay the other side's attorney's fees for trying to force it to pay theirs.

Don't be greedy.

Wednesday, December 17, 2014

Arduini v. Hart (9th Cir. - Dec. 17, 2014)

There's only one published opinion from the Ninth Circuit today.  But it's a procedural doozy.

Do you remember your first year of civil procedure?  That's what this case is all about.  (At least as I read it.)  It's about the intersection between issue preclusion and the Erie doctrine.

Okay.  Stop screaming.  Sorry to take you back to that nightmarish era.  Fear not.  It's over now.  No one's going to test you on this stuff any more.  It's all for fun at this point.

Here's the basic scoop.  Shareholder A files a shareholder derivative suit against Company.  It gets dismissed because the shareholder never made a demand on the directors, with the court finding that a demand wouldn't have necessarily been futile.  Thereafter, Shareholder B files a similar derivative suit against Company, again without making a prior demand.  Shareholders A and B are entirely unrelated (different parties, counsel, etc.) apart from being shareholders in the same company.

Does the prior dismissal of the first lawsuit operate as issue preclusion, and thereby compel the dismissal of the second lawsuit, with respect to the futility of a demand?

The Ninth Circuit says "Yes."

Before we talk about Judge Callahan's conclusion, however, we have to mention something that her opinion somewhat curiously omits:  Erie.

Judge Callahan expressly analyzes issue preclusion here according to Nevada law.  Which might make some initial sense, since the first lawsuit was indeed filed in Nevada.

But there's a problem.  A little thing called Erie.  Because the first lawsuit was filed in federal court, not state court.

Preclusion is generally governed by the law of the rendering court.  That way the parties can know in advance what claims and/or issues will be subsequently precluded, and can conduct themselves in the litigation accordingly.  Makes sense.  Hence, if the first lawsuit had been filed in Nevada state court, of course Nevada issue preclusion would apply.

But it wasn't.  It was filed in federal court.

What issue preclusion rules apply when the first lawsuit's filed there?

If you're smart, you might think:  "Federal principles, of course."  On the same theory:  predictability, plus uniformity (of federal common law).

That might, in fact, be the right rule.  But, at least in contemporary jurisprudence, whether that's the extant rule is not so clear.

This much is clear:  If the first lawsuit's filed in federal court and it's a federal question case (i.e., the dispute is governed by federal law), federal issue preclusion rules clearly apply.  The Supreme Court has expressly said so.  Every circuit agrees.  End of story.

Judge Callahan's opinion doesn't say whether the first lawsuit at issue here invoked federal question jurisdiction.  That's a serious omission.  Because if it did, then the Ninth Circuit should be applying (and citing) Nevada law -- which would be irrelevant -- but rather, federal common law.

That's the first problem.

But, as it happens, I went back and did some digging, and it at least appears that at least one of the first shareholder derivative lawsuits was indeed a diversity (rather than federal question) case.  (I say "appears" because there's only the briefest reference in the relevant documents; moreover, there are in fact multiple prior derivative lawsuits here, something that only further complicates things.)  If that's the case, then maybe Judge Callahan rightly analyzes the issue pursuant to Nevada law.  Even if the opinion should probably mention expressly why we're applying state law here rather than federal law given that the first lawsuit was filed in federal court.

Except it's not even that easy.  Because it's unclear to me that even in a pure diversity case we should in fact be applying state law.

Recall that issue preclusion is expressly governed by federal law -- the law of the rendering court -- in federal question cases.  Recall too that issue preclusion is governed by state law when the first suit was filed in state court; again, the law of the rendering court.  That even appears to be true (I assume) when the state lawsuit contains a federal claim.  We don't care about the substantive claim for issue preclusion purposes; we simply care about the forum in which the suit was litigated.  Those are the res judicata principles that apply.

Except maybe it's not.

Sure, sometimes the Ninth Circuit has said that's the rule; e.g., that res judicata is governed by federal law (consistent with Supreme Court precedent) when the rendering court was federal.  But, when it's being more careful, the Ninth Circuit has also drawn a distinction between federal question as opposed to diversity cases, saying that issue preclusion should only be governed by federal law when the first lawsuit was a federal question case but should be governed by state law when the first lawsuit was a diversity case.

Why does the Ninth Circuit so hold?  Truth be told, there's probably a little holdover in that regard from some pre-Erie precedent.  But there's also an articulated policy rationale as well:  maybe we want to say that issue preclusion is "substantive" (even though that's not, in fact, the right standard under the Erie doctrine; nonetheless, it's close enough) and hence that the federal court's judgment in a diversity suit should be decided according to state law.

There are, however, tons of problems with such an approach.  (Recall also that we're assuming for purposes of argument that the prior suit here was a straight diversity suit; today's opinion doesn't say, and doesn't explain why it's applying Nevada law.)  For one thing, it seems weird.  Sure, sometimes we apply the forum state's law's; e.g., its statute of limitations.  But doing so with respect to issue preclusion seems strange, especially since this seems more of a "procedural" thing (e.g., the future effect of the judgment) and also because the diversity case might be applying the substantive law of a different state (e.g., here, Delaware) and yet we're applying Nevada substantive law to preclusion.  A mish-mash that's got a lot going against it.

Plus there's a matter of precedent.  Lots of circuits have held that federal preclusion law applies when the first suit was filed in federal court regardless of whether that action was a diversity or federal question case.  To the extent the Ninth Circuit wants to go the other way, we're creating a circuit split and heightening the already-problematic nonuniformity that arises from applying state preclusion law to federal judgments.

Oh, one more thing thing.  What do you do when there are multiple suits?  For example, doing a little more digging, in the present case, it looks like there were many different shareholder derivative suits, including but not limited to one (mentioned by Judge Callahan in footnote one of her opinion) that it appears raised federal question claims -- as is not entirely unusual, since derivative suits often raise federal securities counts.  When there's a federal question suit and a diversity suit, which preclusion law applies?  Why?  Especially when (as it often the case) they get consolidated and resolved at the same time.

Plus, what about prior cases that raise federal question claims and supplemental state law claims?  Do you apply federal or state preclusion law to those?  Or, bizarrely, both?  Now we're just getting weird.

Notice how applying federal law to determine the preclusive effect of all federal judgments avoids this complexity.  One rule.  One ring to rule them all.  Nice, simple, and straightforward.

So that's problem number one.  As well as two.  Judge Callahan's opinion doesn't say why she elects to apply Nevada law.  And there's good reason to think that might not be the right rule when you dig down and think deeply about it.

Let's now discuss problem number three.

Regardless of which law one applies -- and I think it's important (for straightforward reasons) to get this initial question right -- I blanch a little bit at saying that the outcome of a prior suit is res judicata of a subsequent suit when the plaintiffs in those two lawsuits are completely different.

Recall the usual rule from your first-year civil procedure class.  When P1 sues D, that doesn't stop P2 from suing D.  Either through claim or issue preclusion.  Why not, even if the issues are identical?  Because P1 hasn't had his day in court.  Moreover, this isn't just a prudential rule.  It's a matter of core constitutional rights.  The Due Process Clause bars us from precluding P1 in such a setting.

So why does the Ninth Circuit think that fundamental principle doesn't apply here?

You probably didn't go over the "privity" exception much in law school, but that's why.  The Ninth Circuit says that even though P1 and P2 are different shareholders, they're nonetheless in privity -- and hence issue preclusion applies -- because they're (1) both stockholders, and (2) both suing on behalf of the same company.  Since the "corporation" is the nominal party in a derivative suit, Judge Callahan says, it's the "same" party.  Hence the Due Process Clause doesn't apply and you're bound.


Admittedly, Judge Callahan's position has a lot going for it.  It is a derivative suit, after all,  Which is indeed technically the "company" filing suit.  So she's right?  Same party?  Or at least in privity?

I get it.  But I'm still troubled.

For one thing, if that's indeed the rule, and the parties are in privity, then isn't the lawsuit barred by claim preclusion as well?  After all, same transaction, same parties.  Why limit yourself to piddly issue preclusion, and instead go for "true" res judicata?

More centrally, I've got a profound problem with saying that the corporation is the "real" party to the suit given that the suit was dismissed.  Remember:  We're trying to figure out the preclusive effect of a judgment in which the court expressly held that the shareholder was not allowed to sue on behalf of the company since he didn't first make a demand.  Well, if he couldn't sue on behalf of the company, then he didn't in fact represent the company, right?  Which means that he's not in privity.  And yet the Ninth Circuit today holds that he did.

Doesn't that seem weird to you?

The first court held that X wasn't allowed to represent the company.  Then Y wants to represent the company.  At which point a second court says that Y can't represent the company since X already represented the company.


To me, the analogy to putative class actions seems pretty strong.  Sure, a dude may file a lawsuit that asserts class claims.  But if it's not certified, he does not, in fact, represent the class.  And included in that result is the fact that this prior putative lawsuit doesn't bar future lawsuits -- whether individual or class claims -- via res judicata.  It's an individual claim even though it tried to assert class claims.

What's true for class claims should equally be true for derivative claims, no?

So it seems to me that there's a strong argument that, whatever law applies, policy concerns -- as well as the Due Process Clause -- might well bar a finding of privity in dueling derivative claims like those here.

Judge Callahan's contrary approach also results in the strange types of machinations you see arise in the last part of her opinion.  Because she holds that Party A "represented" the company (even though he wasn't allowed to) in the first derivative suit, and hence is in privity with Party B, issue preclusion will apply (she says) to bar the second suit.  But she concedes, as indeed she must, that under the Due Process clause, that won't be the case if Party A) was an "inadequate representative" of Party B.  That is the Hansberry v. Lee case you may recall from your first year of law school:  the one that involved the racially restrictive covenants.

So now you have the second shareholder representative claiming that the first one was inadequate.  In part relying on the holding of the first court that the first plaintiff was indeed inadequate because he did not make a demand on the company.  All this stuff coming after the first lawsuit was dismissed.

The class action analogy again seems strong to me.  Normally we dispute the adequacy of the putative class representative at the certification stage.  If he's adequate, the lawsuit is certified and is allowed to go forward, and there is now preclusion (both issue and claim).  If he's not, it's not, and there's no future preclusion.  But Judge Callahan says that, in derivative suits, the rule is different.  I'm not sure that's the better principle.  Or practice.  Seems to me that a retrospective assessment of the adequacy of a representative who was never, in fact, allowed to represented the company isn't really helpful.  Or at least is inferior to a contemporary assessment.  Seems to me better to instead say that you're not in privity until you're actually allowed to represent the company.

None of this would stop res judicata if the derivative suit was in fact resolved on the merits.  If the first suit was indeed allowed forward, but simply lost, well, I'll spot you, there may well be privity (and hence issue preclusion) then.  At that point, the plaintiff does, in fact, represent the company, and the "company" can't sue again, even though another shareholder.

But that's not this case.  Here, the lawsuit never went forward.  It was dismissed on procedural grounds and the plaintiff wasn't permitted to represent the company on the merits.  To me, that's inconsistent with a finding of privity.  On whatever law -- federal, Nevada, Delaware, or Venusian -- we might feel like applying.  At least if the law is to make sense.

All of which is to say -- in many, many words -- that there are profound Erie and preclusion issues raised by today's Ninth Circuit opinion.

Monday, December 15, 2014

Abdisalan v. Holder (9th Cir. - Dec. 15, 2014)

Sometimes circuit precedent matters.

Judge Tallman writes a panel opinion in an immigration case that concludes that, under circuit precedent, Ms. Abdisalan's appeal is untimely.  Judge Watford thinks that this decision is unjust, and dissents, arguing that the relevant circuit precedent is distinguishable and was undercut by subsequent circuit precedent.

The case gets taken en banc.  Now no one's bound by circuit precedent.

What's the resulting vote?  11-0.  Including Judge Tallman, who's on the en banc panel.  The bad circuit precedent is overruled, and a new -- fairer-- procedural regime is imposed.

To tell the whole truth, it might not just be circuit precedent that's at work here.  The old regime (i.e., the one that's overruled today) was created by a panel opinion in 2011.  Written by . . . Judge Tallman.  (Joined by Judges Fernandez and Rymer.)

Judge Tallman and the rest of the panel surely had a choice back then.  But now, Judge Tallman (1) sees the error of his ways, and/or (2) sees the handwriting on the wall.  So everyone votes to overrule.

That's how law sometimes evolves, my friends.

Vivid Entertainment v. Fielding (9th Cir. - Dec. 15, 2014)

Jobs continue to flow out of California.  And the judiciary is doing absolutely nothing to stop it.

The jobs to which I refer are jobs that arise from legalized vice.  The industry is simply on the decline in our state.

On the gambling side, we've always been a distant second to Las Vegas, and our state-sponsored gambling took a hit when we finally gave up relying on our own thing and joined the multistate Powerball in 2013.  As for drugs, we were in the forefront for a while in the medical marijuana space, but now neighbors like Oregon and Washington have crushed us, legalizing the thing outright last month.

But at least we still have the porn industry, right?  Surely the San Fernando valley will always be the hub of this time-honored profession?

No.  Not after today.

This morning the Ninth Circuit rejected an appeal that claimed that the recent imposition of a mandatory condom regime (and other ancillary regulations) by Los Angeles was unconstitutional.  Not surprisingly, the fact that performers have to wear condoms in L.A. but not in other cities -- or countries -- has resulted in a wholesale flight from the jurisdiction.

But say goodbye.  The Ninth Circuit holds that the voter-initiated Measure B doesn't violate the First Amendment.  Judge Graber analogizes the law to regulations that require g-strings.  You can still do what you want to do, and express what you want to express.  But you have to do it in a way that covers up a tiny little bit.  (And, yes, I realize that the use of the words "tiny" and "little" as applied to this industry is perhaps a slight misnomer.)

For what it's worth, Judge Kozinski was on this panel as well.  And doesn't write anything witty on the side.

The outflood of vice-related jobs continues.

Friday, December 12, 2014

Peterson v. Bank of America (Cal. Ct. App. - Dec. 11, 2014)

I have -- perhaps surprisingly -- no problem at all with the 965 plaintiff, 3,142-page complaint filed in this case.  None whatsoever.

Yes, that's a lot of plaintiffs.  Yes, that's a hefty complaint.  Definitely not the kind of "short and plain" pleading expressly required on the federal side.

But Justice Bedsworth is right.  It meets the joinder standards.  Countrywide allegedly did the same (or nearly the same) thing with every loan.  It inflated the appraisal with an in-house entity, wrote the loan and then sold it on the secondary market in order to pocket the proceeds, deceived the borrower, and made out like a bandit -- until the scheme (and market) collapsed.

Sure, there are various differences in the stories.  Just like when a drunk driver crashes into a crowd of people, there are different injuries, different amounts of lost wages, different ways they were hit, etc. that we have to sort out.  But that doesn't stop joinder.  Not in criminal cases.  Not in civil cases.  What Countrywide (allegedly) did is not qualitatively different.

Moreover, the practical realities that Justice Bedsworth raises are exactly right.  It does the courts no good to split this one case into 965.  Moreover, it does the plaintiffs affirmative harm.  Economies of scale exist.  One scheduling order, one set of depositions, one trial, etc.  Makes total sense.  Not 965 different filing fees against a consolidated adversary.

Indeed, perhaps most surprising, if anything, I'm not sure that Justice Bedsworth's opinion goes far enough.  He repeatedly characterizes this case as essentially a "mass action" -- and/or very similar to a class action -- and urges the trial court on remand to deal with subclasses and the like.  I'm not sure I agree.  It's not a mass action.  It doesn't have to be -- and maybe even shouldn't be -- a class action.  It is a group of plaintiffs filing a lawsuit.  No different, again, than a group of plaintiffs hit by a drunk driver or injured in a chemical spill or killed in an airplane crash.  They can sue together.  We deal with any complexities arising therefrom with the normal severance, bifurcation, and severance regimes relevant to individual actions.  I think those more than suffice.

Am I necessarily against putting certain groups of plaintiffs more closely together; e.g., letting all the plaintiffs injured in X way or deceived in Y fashion go to trial together, an putting the W and/or Z plaintiffs on a different track?  No.  Do I think the complaint needs to be over 14 inches tall?  No.  It can definitely be much, much shorter.  (Though I totally understand why the plaintiffs, in light of the ever-increasingly-strict pleading requirements, erred on the side of caution here.)

But as for the case being properly filed, it is.  It should go forward.  There's absolutely no reason why Countrywide should be allowed to force the plaintiff to pay 965 filing fees and undertake 965 trials.

Justice Fybel disagrees with Justice Bedsworth, and dissents.  I'm sure that Judge Fybel would disagree with my approach even more.

Read both opinions.  See who you think's right.

Pacific Corporate Group Holdings LLC v. Keck (Cal. Ct. App. - Dec. 12, 2014)

What a jurisdictional mess.

If you think it's easy to figure out if you can appeal -- and/or on what issues -- when the trial court imposes an additur (e.g., grants a conditional new trial) and the defendant doesn't consent, this case will disabuse you of that notion.  Instead, it's an absolute nightmare to figure out, and Justice Aaron goes through the various conflicting opinions and caveats and exceptions that govern this topic and sorts them out as best she sees fit.

My own opinion, upon reading this whole thing, was that a much more straightforward solution was in order:  Just don't allow an appeal until the new trial on damages is over.  On anything.  At all.

That's what we essentially do in the federal system.  And it seems to work out just fine.

I understand that's not an option that the Court of Appeal has given existing state precedent.  But it's something the California Supreme Court might well want to consider.

If only because cases like this one are a sloppy mess of piecemeal review.

Thursday, December 11, 2014

People v. Hernandez (Cal. Ct. App. - Dec. 11, 2014)

The police are interrogating a 16-year old murder suspect.  The kid is in a gang, and he's worried that if his gang friends find out that he's said anything to the police, they'll kill him in prison.  The 16-year old tells the officer:

"You’d be surprised all the things they know, man. Everybody [who] snitches, they get killed in prison, sooner or later. They know, they know somehow. They find out. That’s, that’s, that’s how bad those people are. And you say you’re not gonna say nothing. Someone’s gonna find out no matter what. What I just said right now, is gonna get me killed sooner or later. By my own people, man. I know you’re gonna tell someone else."

A legitimate fear, to be sure.

But fear not.  We can trust the police.  Here's what the officer tells the 16-year old:

“[Defendant]: If I talk, nobody’s gonna know?
Detective: It’s gonna be between us, bro. It’s between us right here.
[Defendant]: Promise?
Detective: I promise. It’s with us right here. Okay? I do have to write everything down, eventually, because I gotta type, uh, for, like, ever. But just be honest, brother.”

Don't worry.  It's between us right here.  I promise.

Oh, and I also have a beautiful bridge in Brooklyn I would like you to see.

I'll not further complicate things by adding the stuff about the 16-year old repeatedly saying that he wanted to pee but the officer not letting him.  That'd be piling on.

The Court of Appeal affirms the conviction notwithstanding the promises on the basis of wiggle room in the officer's representations to the kid.  So, yeah, the officer repeatedly promised that whatever was said would stay "between us right here".  But he also said that he would eventually "have to write everything down."  A caveat that I'm certain the 16-year old understood meant that the "promise" had absolutely no significance and that any admission would be played out in front of his gang member friends in a public trial.  Because 16-year olds are incredibly, incredibly smart.  Especially 16-year old gang members.

The Supreme Court allows officers to deliberately lie to suspects.  So that's the law.  But cases like this demonstrate that there's nonetheless a downside -- both public relations and otherwise -- to this permitted (and routine) practice.

Once everyone learns, as they should, that you can't trust a word that a police officer says to you -- even when (as here) they expressly say "I promise" -- that realization may have profound significance for future interactions between the police and the citizenry.

Wednesday, December 10, 2014

Fiorini v. City Brewing Co. (Cal. Ct. App. - Nov. 6, 2014)

The first line of this opinion reads:  "Ron A. Fiorini (Fiorini), a 23-year-old college student at Fresno Pacific University, was shot to death by police on October 5, 2010. . . ."  So you already know what the suit is about, right?  Particularly timely given the current disputes in Ferguson, New York, etc.

Wrong.  Look again at the title of this post.  And I'll complete the first sentence:  ". . . after drinking two 23.5-ounce cans of Four Loko."

Now you know where it's going, right?  Yep.  "Fiorini’s father, Brett Fiorini (plaintiff), sued City Brewing Company, LLC (City Brewing), the company that brewed, bottled, and labeled Four Loko, for negligence and strict liability."

Seriously?  No way he's going to win that lawsuit, right?  You can't sue Corona for getting you killed (or sunburned), can you?

Well, wait a minute.  Four Loko ain't exactly Corona Light.  Check out the next two sentences of the opinion:  "He alleged a single can of Four Loko contained as much alcohol as five to six 12-ounce cans of beer and as much caffeine as approximately four cans of Coca-Cola. He also alleged that combining alcohol, a depressant, with caffeine and other stimulants created a product that had unreasonably dangerous propensities because it masked the intoxicating effect of the alcohol and increased the risk of violent and other high-risk behavior."

Okay.  So not good.  But it's a legal product.  Not like it's methamphetamine.  Maybe the police are liable.  Maybe the deceased is responsible.  But surely not the brewer, right?

That's indeed what the defendant said.  Next sentence:  "City Brewing moved for judgment on the pleadings, contending that the proximate cause of an alcohol-related injury was the consumption of the intoxicating beverage, not the manufacture and sale of the beverage."

Result?  Next sentence:  "The trial court granted the motion, concluding City Brewing was protected by the civil immunity in California’s dram shop statutes because (1) Four Loko was fit for beverage purposes, and (2) City Brewing furnished the beverage to Fiorini."

Simple enough.  The Court of Appeal will surely affirm, right?  No way we're going to expand liability this far.  Even for a crazy mix of alcohol and caffeine.

Next three paragraphs:

"We must determine whether the civil immunity provided by California’s dram shop statutes protects the manufacturer of Four Loko from liability for injuries to consumers. The immunity applies to persons who furnish alcoholic beverages to the individuals who drink them. Prior cases have interpreted “furnish” to require the defendant to have some control of the alcohol and to take an affirmative step to supply it to the consumer. Here, the complaint does not allege City Brewing (1) exercised any control over the cans of Four Loko after they were delivered to a regional distributor or
(2) took an affirmative step to supply the Four Loko to Fiorini. Therefore, we conclude City Brewing did not “furnish” the beverage to Fiorini and, therefore, the civil immunity in California’s dram shop statutes do not extend to City Brewing.

In addition, judgment on the pleadings cannot be upheld based on the statutory immunity that bars product liability claims for certain inherently unsafe common consumer products. (Civ. Code, § 1714. 45, subd. (a).) That statute lists alcohol as such a product, but plaintiff has alleged Four Loko was unreasonably dangerous due to the combination of high levels of alcohol and stimulants and the risk posed by stimulants that mask the intoxicating effect of the alcohol. The allegations about the interactive effect of Four Loko’s ingredients preclude us from finding, as a matter of law, that Four Loko’s combination of alcohol and stimulants constitutes a “common consumer product” within the meaning of Civil Code section 1714.45, subdivision (a)(2).

Therefore, the judgment must be reversed and the matter remanded to the trial court for further proceedings."

Read the remaining 23 pages for more details.  But the net effect is that plaintiff's lawsuit goes forward.

Fascinating stuff.

Tuesday, December 09, 2014

In Re Jose O. (Cal. Ct. App. - Dec. 9, 2014)

Jose thinks that he should merely be a dependent of the court, not a delinquent.  But when the court summarizes your problems like this, you're not in an especially favorable situation:

"Jose has struggled to abide by the rules and regulations of his group homes. Jose has failed to obey the law . . . and has shown a pattern of delinquent,high-risk behavior. Jose appears to have issues regarding substance abuse and gangs. Jose poses a risk to himself and to the community and appears to be in need of supervision and immediate consequence. [¶] . . . Jose’s gang status has increased to a point that child welfare services have been ineffective in addressing his needs or the needs of the family. He has been AWOL from group home placement since September 10, 2013. During this time relatives knew of his whereabouts but remained voiceless about assisting in his return. Meanwhile, his criminal and gang issues exacerbated."

I'm not going to even attempt to list all of Jose's assaults, gang-related behavior, etc.  There's only so much (virtual) space on this blog.  Suffice it to say that Jose is, indeed, a delinquent.

Which is not to say that it's entirely Jose's fault.  "[T]here had been “37 referrals for the investigation of child abuse or neglect associated with [Jose’s] family' dating back to late 2002, when Jose was four years old. As a result of these referrals, several child-welfare cases were opened, the most recent resulting in Jose’s placement in the Antioch group home from which he had run away."  He's in part a product of his environment.

But at some point, we start holding you accountable for who you are and what you do.

Here, that's at the age of fifteen.

Monday, December 08, 2014

Alvarez v. Tracy (9th Cir. - Dec. 8, 2014)

If you're a judge on the Ninth Circuit, it's gotta make your week if you wake up and find that you're on the receiving end of a blistering dissent by Judge Kozinski.  You gotta be thinking:  "This is why I wanted to be on the Ninth Circuit?!"

Not that Judge Kozinski is always right.  At all.  But he's got a way of saying things that's flashy.  As well as memorable.  And this just in:  He pulls punches.  Not.

You can read the couple of dozen single-spaced pages that he devotes to his dissent in this one, which responds to an opinion by Judge Randy Smith joined by Judge O'Scannlain.  But the following is sufficient to give you a good feel for the thing.  As well as, perhaps, to entice you to read it:

"When we take the judicial oath of office, we swear to “administer justice without respect to persons, and do equal right to the poor and to the rich . . . .” 28 U.S.C. § 453. I understand this to mean that we must not merely be impartial, but must appear to be impartial to a disinterested observer. Today we do not live up to this solemn responsibility. Relying on a ground not raised by either party here or in the district court, we refuse to consider petitioner’s serious and, in my opinion, meritorious claims. This is only the latest indignity inflicted on a criminal defendant who, despite having a seventh-grade education, was forced to defend himself at trial; although having the right to a jury, was never told that he had to ask for one; and who was therefore convicted and sentenced to eight years in prison in a bench trial where neither the prosecution nor the judge lifted a finger to bring the accusing witness into court. He’d have had a fairer shake in a tribunal run by marsupials.

I am troubled by the disparate way we treat the parties. Alvarez and the Community both failed to raise legal issues at the proper time and in the proper manner. Alvarez failed to raise his jury trial and confrontation claims by way of a direct appeal within the tribal court; the Community failed to raise an exhaustion defense in district court. The Community committed an additional default by also failing to raise this issue on appeal—something we’ve repeatedly held is an independently sufficient basis for declining to address it. [Cites]

The majority forgives the Community’s double-default but holds Alvarez strictly to his single oversight. I can’t see the justice in this, but it gets worse: Alvarez committed his default when he stood before the Community court without representation. It’s not clear that he was ever advised of a
right to take an appeal. But if he was, it happened months before his trial. After he was convicted and sentenced to eight years in prison, he was not reminded of his right to appeal; he was given no notice-of-appeal form or other guidance about how to take an appeal. He was incarcerated with no ready access to legal materials and faced a 5-day filing deadline—shorter than any I’ve ever heard of.

The Community, by contrast, was at all times represented by competent (and presumably well-compensated) counsel. It was fully aware that failure to exhaust was a plausible defense, and raised three separate exhaustion arguments in the district court (though not the one that my colleagues are so taken with). It then chose not to argue exhaustion at all in its appeal to us.

Confronted with this checkered procedural history, we might hold both parties to their defaults. That would have an appearance of fairness. Or, we could forgive both parties their defaults, which also seems fair. But if we do either of these things, the exhaustion issue drops out, and we must rule on the merits of Alvarez’s petition. The only way to reach the majority’s result here is by excusing the Community’s defaults while holding Alvarez strictly to his—which is just what my colleagues do.

I have read the opinion many times and disagree with pretty much everything in it, including the numerals and punctuation. I explain why in the pages that follow, but first I pose a more basic question: How can a court committed to justice, as our court surely is, reach a result in which the litigant who can afford a lawyer is forgiven its multiple defaults while the poor, uneducated, uncounseled petitioner has his feet held to the fire? I attribute no ill will or improper motive to my excellent colleagues. They are fair, honorable and dedicated jurists who are doing what they earnestly
believe is right. But we see the world very differently. See, e.g., United States v. Pineda-Moreno, 617 F.3d 1120, 1123 (9th Cir. 2010) (Kozinski, C.J., dissenting from denial of rehearing en banc). I can find no justification for showing such solicitude for the overdog while giving the underdog the back of the hand."

The "I disagree with even the punctuation" point perhaps goes a bit too far (as well as is silly).  But you get the point.


P.S. - The Ninth Circuit's web site lists the opinion as authored by Milan Smith.  But it's actually Randy.  Which is not just a "Smith v. Smith" error.  The two might actually have come out opposite ways in this one had both been on the panel.

People v. Lavender (Cal. Supreme Ct. - Dec. 8, 2014)

You know what's going to happen in the next twenty pages when Justice Baxter begins this opinion by saying:

"Jurors, like all human beings, are imperfect. It follows that jury deliberations may also be imperfect. A single juror may fail to recollect some bit of testimony. Some jurors may forget or misapply one of the instructions. Others may focus tenaciously but unreasonably on one aspect of the record to the exclusion of the rest. Through the give and take of deliberations, however, the jury‘s collective memory and common sense will often correct these types of errors and lead to a result that surpasses in wisdom the understanding of any one person."

Yep.  The grant of a new trial is going to be reversed.  Unanimously.

Justice Baxter's introduction may well deliberately understate the nature of the "imperfection" at issue here.  This is a case where one of the jurors (allegedly) said that the defendant must be guilty because he didn't testify.  Guess we need to brush up a bit on the Fifth Amendment, eh?

But the California Supreme Court says that that error is like any other type of internal error in jury deliberations.  We assume they worked it out.

In truth, we make this assumption even though we know it's not always true.  Justice Baxter's right that the "give and take" of deliberations "will often" correct these errors.  The negative pregnant there is also right:  We know full well that, lots of times, it won't, and will instead perniciously affect the verdict.

But, as a policy matter, we simply don't want to hear about it.  It's excruciatingly hard to differentiate between errors we "care" about (e.g., the Fifth Amendment) and those we don't (e.g., errors about the weight of particular testimony).  Juror deliberations are like sausage.  We like the result, but only if we close our eyes to how it's made.

So we close our eyes.  And, ummm, the sausage -- justice -- is so yummy.

As long as you forget what's in it.

Friday, December 05, 2014

People v. Kirwin (Cal. Ct. App. - Dec. 4, 2014)

Justice Hoffstadt begins this opinion by saying:

"Does a trial court abuse its discretion in denying a criminal defendant the right to represent himself when he has repeatedly refused to come to court and be interviewed by a court-appointed mental health expert? Is a defendant who makes six separate telephone calls urging a relative to persuade the prosecution’s chief witness not to testify at trial entitled, under People v. Bailey (1961) 55 Cal.2d 514, to dismissal of all but one of his six convictions for attempting to dissuade a witness? The answer to both questions is no, and we affirm Defendant Charles Kirvin’s convictions and, with one small correction, the 26-year prison sentence imposed in this case."

I'll add only one sentence to this otherwise cogent recitation of the case.  A fact that Justice Hoffstadt tactfully omits from his initial recitation, but which I'm confident matters -- both from a legal as well as a practical perspective -- to how the Court of Appeal comes out in this case.  It would read:

"Oh, and, by the way, not only does the defendant refuse to come to court whenever he doesn't feel like it, but he also repeatedly throws excrement on people -- like jail officials -- he doesn't like.  Is this the kind of guy we're going to let represent himself in court?"

Okay, so that's two sentences.  But you get the point.

Throwing poo = Not representing yourself.

We have enough problems in courtrooms already these days without adding flying feces to the mix.

Thursday, December 04, 2014

Hartpence v. Kinetic Concepts (9th Cir. - Dec. 3, 2014)

It seems like a fairly straightforward order:  "Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a)
and Circuit Rule 35-3."

Which made me think:  "Hmmm.  Don't remember that one.  Hartpence v. Kinetic, you say?  Usually I'm pretty good about recalling high-profile and/or 'might-go-en-banc' cases.  Let me go back and read what I said."

So I searched.  Didn't say anything at the time.  Must not have thought it was important.

But it is now.  Going en banc.  So let's take a look at the panel opinion.

Searching.  Searching.  Searching.  Nothing.

Strange.  Well, there are two case numbers on the caption.  Maybe it's the second one.

Search again.  Nope.

Oh.  I get it.  Must be an en banc call over an unpublished disposition.  Rare, but happens sometimes.  Let's pull it up.

Searching.  Nothing.  Searching under the second number.  No.

What the heck?

So I dig and dig.  Turns out that there's no panel opinion.  At all.  It got argued in July.  But that's it.  No opinion.  You've got the oral argument and then next thing that happens the thing gets taken en banc.

Which is darn rare.

When you listen to the oral argument, it's pretty clear what happens.  Appellant argues that the law in the Ninth Circuit is X but that an intervening Supreme Court decision holds Y, so Y's the law, not X.  But as the panel recognized at oral argument, there's a post-Supreme Court holding from the Ninth Circuit that reiterates that X is the law.  As Judge Berzon noted at the oral argument, "We're pretty strict here in the Ninth Circuit about what a panel can do" in such situations.  Short of an en banc call, the law's X, and the panel is bound to follow it.

What normally happens in these situations is the the panel writes a short opinion that says they're bound to X even if X is wrong, and then someone on the panel (or someone else) subsequently calls for en banc review.  Seen that tons of times.

Not here.

The departure from typical practice initially struck me as strange.  But the more I thought about it, the more it made sense.  Why not find out now whether the court wants to take it en banc instead of later?  Certainly faster.  More importantly, it leave you options.  If the whole Ninth Circuit wants to take it up, that'll make things easier:  We'll know quickly whether the law's X or Y.  And if the Ninth Circuit doesn't want to take it en banc, the panel's got more options:  they can try to distinguish the present case from the cases that hold X, try to rationalize X and Y, etc.  Or they can simply apply X.

No need to go through all those mental gymnastics initially if we can first persuade the court to take the case en banc.

So I like it.

Wednesday, December 03, 2014

People v. Buza (Cal. Ct. App. - Dec. 3, 2014)

The voters enacted Proposition 69 in 2004, which requires that the police take a DNA sample of anyone arrested for any felony.  Notice the operative word "arrested".  No warrant.  No finding of probable cause.

How does that square with the Fourth Amendment?  Big debate.  On the one hand, we don't allow lots of searches without consent or probable cause.  On the other hand, we allow fingerprinting, booking photos and other ancillary stuff as a standard practice.  Which set of principles properly applies?

The Court of Appeal thought it was the latter, and struck down the requirement.  But shortly thereafter, the United States Supreme Court decided Maryland v. King, which held that a very similar statute in another state wasn't unconstitutional.  The California Supreme Court had granted review and stayed the present case pending King, and after that decision, last year, returned the case to the Court of Appeal for reconsideration.

So what did the Court of Appeal do?  Fold?

Nope.  Doubled down.

Justice Kline clearly favors Justice Scalia's dissent in King.  His opinion on remand quotes pages and pages from it.  Even calls it "piercing".

But relying on a dissent isn't going to persuade the California Supreme Court.  Because it's a dissent.

So Justice Kline does what any good lawyer, or judge, would do.  Distinguishes the case.

This statute is different, he says.  For one thing, it applies to all felonies, not just the "serious" ones at issue in King.  For another, that statute allowed DNA testing only after the person was charged -- and hence after a probable cause determination by a judge -- whereas California's law applies immediately after the arrest, and hence before any such hearing.  Plus, California's statute allows familial DNA searches, whereas Maryland's expressly prohibited that practice.  So there.

Justice Kline recognizes that King was a 5-4.  It might well be that the majority in King wouldn't care about these alleged differences.  But he's giving it his best shot.  Only takes one vote to swing the decision the other way.  Maybe for one of the justices, these differences will tip the scales.

But Justice Kline doesn't stop there.

He recognizes that these distinctions might well not persuade the Supreme Court.  Indeed, in a footnote, he recognizes that they didn't even persuade the Ninth Circuit.  A tribunal which, earlier this year, essentially gave up the ghost (albeit in a case that reviewed a preliminary injunction) and admitted in a four paragraph per curiam opinion that King essentially means that Proposition 69 is valid.

But Justice Kline isn't deterred.  He gets it.  So he expressly bases his holding on state law; in particular, Article I, section 13 of the California Constitution.  The Supreme Court isn't permitted to review decisions that rest upon independent and adequate state law grounds.  Gotcha.

We'll see if the California Supreme Court's willing to play the same game.  Justice Kline thinks it's at least worth a shot.  Time will tell whether the gambit works.

Count those votes.

Tuesday, December 02, 2014

People v. Parker (Cal. Ct. App. - Dec. 2, 2014)

She did, in fact, shoot up a doctor's office.  That's not good.  Not good at all.

But there's always a story.  Not necessarily one that makes everything make sense, but that's a big part of the story as well.  Here's two paragraphs of hers:

"In 1994, defendant had surgery to remove a cyst in her vaginal area. Defendant believes the surgeon intentionally disfigured her labia and cut her vaginal artery, which defendant believes is causing her to bleed internally, despite the artery being four inches from the surgery site and no incisions being made in her vaginal wall. Defendant also believes the doctor is a member of a cult that harms women.

On August 20, 1999, defendant entered the doctor’s office with a .22-caliber revolver and ordered the doctor to the floor. Defendant discharged two rounds into the ceiling and ordered the receptionist to assist with handcuffing the doctor. Defendant then waited for the media to arrive so she could 'expose' the doctor. Law enforcement arrived, and defendant engaged in a standoff for approximately 20 minutes."

Not your typical shoot-em-up offense.

Perhaps not surprisingly, the jury finds the defendant not guilty by reason of insanity.  So she gets sent to Patton, an in-patient mental health facility.

And gets better.  Thankfully.  Medication (presumably).  Mental health treatment.  The works.


After six years, she's sufficiently better that she gets released from the hospital.  Still gets outpatient treatment.  Still supervised by the San Bernardino/Riverside Conditional Release Program (CONREP).  But out and "free".  At least relatively.

I won't belabor the details, but suffice it to say that in 2009 she begins to decompensate.  Gets more paranoid.  Maybe starts drinking (which violates the terms of her release).  Starts focusing way too much again on her allegedly messed up vagina.  Other stuff too.  ("Defendant missed a CONREP appointment in May 2009. Defendant called her therapist and said she went AWOL from the program in order to seek medical attention for the 'botched' vaginal surgery. Defendant traveled to Oregon “in search of a clinic to perform her desired CT-scan”—a vaginal arteriogram. While in Oregon, defendant hit or attempted to hit her ex-boyfriend’s girlfriend with a vehicle. Defendant was charged with recklessly endangering another person and was extradited back to California for absconding from CONREP.")

Back in to Patton she goes.

Two more years of treatment.  Fixed.  In December of 2011, the trial court finds that she's no longer a danger to herself or others.  It orders her released from Patton and tells CONREP to find (and let the court know) the best outpatient placement for her.  That's where we'll put her.  Because -- to repeat -- she's no danger to herself or others.

CONREP's supposed to do that, by statute, within 21 days.  That doesn't happen.  Instead, it takes six months or so.  During which time she stays in Patton.  Then CONREP tells the court that it disagrees with its decision.  She should stay in Patton and not be released.

You'll notice that's not what the court asked.  Or -- more accurately -- ordered.

But CONREP says that the usual places won't take her.  Keeps talking about her alleged problems; e.g., "My vagina is black! I have pictures."  Not the kind of person these places want.  So CONREP says that she should stay in.  If only because no one will take her.

At which point the trial court reverses itself and keeps her in.

There's a huge underlying problem here.  The trial court found that defendant was not a danger to herself or others and satisfied the criteria for being released.  CONREP is not the Court of Appeal.  It's not supposed to "review" the trial court's decision.  Even in the guise of saying "Oh, sorry, we can't follow your order because we think you're wrong and she is, in fact, still a danger to herself or others, ergo no one will take her."  Not supposed to be the way these things work.

Ultimately, though, the Court of Appeal affirms.  The trial court can change its mind.  And did so here based upon new evidence:  namely, the evidence that arose once CONREP engaged in the much-longer-than-21-day process to "find" her a placement.  One that it really never thought should have been ordered in the first place.

Curley v. City of North Las Vegas (9th Cir. - Dec. 2, 2014)

Judge Friedland was appointed to the Ninth Circuit in April.  Her first published opinion came out last week.  Her second was published this morning.

At least thus far, Judge Friedland's opinions definitely don't qualify as "hide the ball" dispositions.  You can be pretty sure from the way the facts are characterized how the thing's coming out.  This morning's opinion, for example, sets up the facts this way:

"Michael Curley appeals the district court’s grant of summary judgment in favor of the City of North Las Vegas on his claims alleging discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”). First, we consider whether a doctor’s finding that Curley did not pose a safety threat belies one of the City’s stated reasons for firing him—his long history of threatening coworkers. . . .

Curley received many oral and written reprimands during his employment with the City. His disciplinary record reflects that, over the course of several years, Curley had numerous verbal altercations with coworkers, made insensitive remarks about a fellow employee’s motorcycle accident, damaged City property, and made several threats of violence against coworkers. Curley’s disciplinary record also includes statements by coworkers regarding his constant complaints and negative remarks about his managers and the City. . . .

Shortly after his correspondence with the City regarding his second request for accommodation, Curley was involved in another incident with a coworker. The coworker asked Curley to remove his hearing protection so that the two of them could communicate about a work-related task. In response, Curley began swearing and asking the coworker whether he thought he was a doctor. The incident prompted the City to place Curley on administrative leave and to launch an investigation into his behavior.

As part of the investigation, the Human Resources Department interviewed City employees and asked about their interactions with Curley. The interviews revealed that Curley had repeatedly threatened his coworkers and their families. For example, he threatened to put a bomb under a car, insinuated that he had mafia connections, and talked about giving a “blanket party”—which would involve throwing a blanket over a person’s head and beating him. One coworker reported that Curley threatened to kick his teeth out if the coworker did not join a union. On another occasion, Curley threatened to shoot his supervisor’s children in the kneecaps.

The interviews also revealed details about Curley’s work habits. Multiple coworkers said that Curley regularly conducted personal business while at work, sometimes spending up to three hours on his cell phone. It also appears that Curley was operating an ADA consulting business. Many of the calls he made during work were about the business, and coworkers saw him approach disabled individuals to discuss potential lawsuits."

Hmmm.  I wonder which way this one's coming out?

Monday, December 01, 2014

Hernandez de Martinez v. Holder (9th Cir. - Oct. 24, 2014)

The commission of some crimes so serious that even if you otherwise qualify for asylum, we're not going to give you relief.  We just can't have people of your type in our country.  Regardless of the truly exceptional circumstances that would otherwise warrant the grant of asylum.

Those crimes include the offense of using someone else's social security number to get a job in the U.S. (because, without that number, it's illegal for the employer to hire you).

So holds the Ninth Circuit.