Wednesday, December 30, 2015

People v. Goode (Cal. Ct. App. - Dec. 30, 2015)

The law of burglary is weird.  Super weird.  It doesn't match what you thought it was at all.

Mark Goode doesn't enter a home.  He tries.  He opens a metal storm door, but can't get in.  A few seconds later, he jiggles a nearby window.  Again, he can't get in.

But that's still burglary.  Because a "part" of his body got into the space between the storm door and the front door.  That's the law.

Weird enough.

But the trial court sentenced the guy based on two burglaries.  One burglary being trying the front door, the other being trying the window (of the same residence) a few seconds later.  Hence adds eight additional months in prison to the guy's sentence.

That's too much even for the Court of Appeal.  One burglary.  The attempts to open the door and window weren't a divisible act.  So still a burglary, even though he guy never actually entered  But only one.

Tuesday, December 29, 2015

McKinney v. Ryan (9th Cir. - Dec. 29, 2015)

Think that the en banc draw doesn't matter?  Or that having the chief judge automatically on the en banc panel doesn't make a difference.

Think again.  Here, it may well be the difference between life and death.

The vote is 6-5 to overrule circuit precedent and overturn the death sentence here.  Judge Fletcher writes the majority opinion.  Joined by Chief Judge Thomas and Judges Wardlaw, Berzon, Christen, and Nguyen.

That makes six.  Judges Kozinski, Gould, Tallman, Callahan, and Bea dissent.  That's five.  One less.

One different person on the draw might have changed the result.

Indeed, if the (archaic) rule about the chief judge automatically being on the en banc court didn't exist, by my count, there'd be around a one-in-three chance that Mr. McKinney would remain sentenced to death.

It's a lottery.  With rules that matter.  And sometimes make a dispositive difference.

Oyama v. University of Hawaii (9th Cir. - Dec. 29, 2015)

You'd think that if you were in the process of trying to get a teaching job in the public schools, you could keep to yourself -- or at least not express to the people reviewing your suitability for the job - that you think that the age of consent should be zero, that online child predation should be legal, that most students with disabilities are "faking" it, that there's no substantial benefit to mainstreaming disabled students, that you think about suicide "every day," etc.

Admittedly, it might well take a 46-page, single-spaced opinion to decide that these comments of yours aren't sufficiently protected by the First Amendment to preclude the government from denying you a teaching credential on the basis of these comments.

But, seriously.  Just learn to keep your mouth shut.  Sometimes discretion is an important part of getting what you want.

Monday, December 28, 2015

U.S. v. Navarrette-Aguilar (9th Cir. - Dec. 27, 2015)

There are many ways that cause me to recognize that I'm getting old.  So many, many ways.

For example, in my first-year civil procedure textbook, there's a district court opinion on summary judgment in the civil lawsuit that arose out of the death of Len Bias.  The question in that case was whether there was a genuine issue of material fact as to whether Mr. Bias used cocaine at a particular point in time.  It's not one of the leading opinions on summary judgment (obviously), but it's nonetheless used as a concrete example of how district courts are supposed to evaluate evidentiary conflicts in determining whether there's a genuine issue of material fact for trial.

For people my age, it's a high-profile case.  Or at least was a high-profile death.  They've heard of Lenny Bias.  But every year, I have to explain to my students who Len Bias was.  The overwhelming majority of them have absolutely no idea.

I currently try to explain that Len Bias was sort of like the Lebron James of his era -- someone incredibly good who came out of school and then promptly, and tragically, died.

Soon enough, I'm sure even that analogy won't work.  I'll have to explain who Lebron James was.

Anyway, today's Ninth Circuit opinion reminded me of Len Bias because the opinion revolves entirely around the "Len Bias law" -- a federal statute that provides that the distribution of a schedule I or II narcotic resulting in a death or serious injury carries a twenty-year mandatory minimum sentence and a mandatory life sentence for those with a prior felony drug conviction.  It's not a statute that I knew anything about prior to today.  It's also yet another example of how mandatory minimums can be used in charging decisions by the relevant authorities to leverage heavy penalties (and/or plea deals).  I imagine that virtually everyone who, say, slings heroin (in any reasonable volume, anyway) is responsible for at least one eventual death down the supply chain.  It's just a matter of following the trail and identifying a particular person.  Then, boom, it's a lifetime in prison.  Your fortune depends on whether there's a prosecutor somewhere who feels like doing the work.

Anyway, Len Bias.  A blast from the past.

Monday, December 21, 2015

Garcia v. Long (9th Cir. - Dec. 21, 2015)

"No" means no.

There are so, so many areas in which this is unambiguously true.  This is one of them.

The police interrogate a suspect, read him his Miranda rights, and then ask him if he wants to speak with them.  The suspect responds:  "No."

We can stop right there.  That's unambiguous.  No means no.  End of story.

The California Court of Appeal, in an unpublished opinion by Justice King in 2011, held otherwise, stating that the "No" was really ambiguous, and hence the suspect's subsequent confession during the questioning was properly admitted at trial.

That's wrong, the Ninth Circuit says.  In an opinion written by Judge Bybee.  "No" isn't ambiguous.  It means what it means.  Indeed, the California Court of Appeal's decision to the contrary was not only wrong, but unreasonably wrong.  So even under AEDPA, habeas relief is warranted.

Judge Bybee is right.  The California Court of Appeal was wrong.  There's nothing ambiguous about "No."

I'll add one more thing to what Judge Bybee says in his opinion.  The Court of Appeal held that "No" was ambiguous because earlier in the questioning, the suspect had said "No" to various questions and then later allegedly "contradicted" that answer.  For example:

"Q: Do you ever go by any other names?
A: No.
Q: No? And where . . . .
A: Well, yeah, yeah, before you continue, sir. Uh, a long time ago when I was, uh, uh, illegal in this country, oh, so many years, I used, uh, Francisco Lopez."

Judge Bybee's opinion says that there's no actual "contradiction" in these prior answers because the subsequent clarifications were consistent with the suspect's original answer.  For example, the police asked Mr. Lopez whether he currently used any other names ("Do you ever go by any other names?") and he said "No," and his subsequent answer that he formerly used a different name ("a long time ago") didn't contradict at all his prior "No."

Judge Bybee's right again.  But I'll add that the alleged "contradiction" is also irrelevant in any event.  A "No" answer is unambiguous even if I previously totally contradicted myself time and time again.
For example, maybe you asked me previously:  "Shaun, are you 49?" and I said "No."  But then, later, I said "Actually, yeah, I'm 49."  Then you asked me:  "Shaun, do you like pizza?" and I said "No," but subsequently admitted that I ate it every day.  Then, after all these negative responses, you ask me:  "Do you want to sleep with me?" and I say "No."

Dude:  That's not ambiguous.  Don't try to sleep with me.  Maybe I lied before.  Maybe I changed my mind before.  That doesn't matter.  My current "No" now still means "No."  My very clear "No" is not somehow an "unclear" response just because previously I made amendments to my prior answers.

To reiterate:  No means no.

A pretty easy thing to remember, actually.

Thursday, December 17, 2015

Olive Properties v. Coolwaters Enterprises (Cal. Ct. App. - Oct. 30, 2015)

Commercial Tenant doesn't feel like paying Landlord rent, so stops doing so.  Around the same time, it also files a lawsuit against Landlord saying that Landlord breached the covenant of quiet enjoyment by leasing space "to a pizza and Italian Restaurant, which for the last 18 months has been taking all of the parking spaces in the shopping center."  Which, presumably, is going to be Tenant's excuse for not paying rent.

Predictably, once Tenant doesn't pay its rent, on November 5, Landlord brings an unlawful detainer action.  But Tenant's got a trick up its sleeve.  It files an anti-SLAPP motion to dismiss, claiming that the unlawful detainer action was filed as "retaliation" for Tenant filing the earlier lawsuit.

And the filing of the anti-SLAPP motion entitles Tenant to all the usual protections therefrom; a stay, briefing, delay, etc.

The trial court, however, is no dummy.  It sees through all this.  It not only denies the anti-SLAPP motion, but awards Landlord $3,392.50 in sanctions for 11.5 hours of attorney time expended in responding to the special motion to strike, finding "that Tenant filed the special motion to strike 'for the purpose of delay.'"  Holding that -- shockingly -- the filing of the unlawful detainer action was not motivated by free speech (i.e., the filing of the lawsuit), but rather the failure to pay rent.

All of which is true.  And awesome.  Exactly what should happen.

Tenant, however, doesn't get the message.  It files an appeal.  Saying that the trial court got is wrong.

The appeal is equally, if not more, frivolous than the underlying motion in the trial court.  I'd be very inclined to spank Tenant with sanctions on appeal.  As well as (likely) its counsel, Lee Durst.  Who's got a couple of additional pending problems of his own.

Respondents are no dummies.  They request sanctions on appeal.

But they make a critical strategic error.  Landlord and its attorneys overreach.

Landlord and its counsel request $73,352.50 in sanctions on appeal.  Twenty-one times what they obtained below.  All for the submission of a brief that the Court of Appeal describes as "essentially was a reiteration of its opposition papers below."

Remember:  Pigs get fat.  Hogs get slaughtered.

The Court of Appeal says essentially the same thing.  Albeit in legalese.  It affirms the denial of the motion to strike, but refuses to award fees on appeal.  Saying:

"‘If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked for in the first place.’ Accordingly, Landlord’s request for $73,352.50 in sanctions on appeal, particularly in light of the $3,392.50 attorney fee award which it sought and obtained in the court below, is denied as excessive."

Don't be greedy.  Or you may well get squat.

Wednesday, December 16, 2015

Jenks v. DLA Piper (Cal. Ct. App. - Dec. 16, 2015)

It's a slow news day.  Okay, maybe not a slow news day.  There's plenty of news in the world.  I imagine, anyway.  But on the California appellate front, there's virtually nothing.  No opinions from the Ninth Circuit.  Only one published opinion from the California Court of Appeal.

But ooohhhh!  It's a lawsuit by a former DLA Piper associate against the firm!  Vitriol!  Scandal!  Litigation!!

Okay.  Only the third of these three.  But still.  It's something.  So we can take a peek.

The plaintiff, M. Todd Jenks, graduates from the University of Florida Law School way back in 1995.  Then, according to his LinkedIn profile, he works for a smallish law firm for a couple of years, and then works for another smallish law firm for another couple of years.  (Todd's profile says he worked for the first firm starting in "January 1996," but he was only admitted to the bar in June 1996.  Maybe the dates are a bit fuzzy.  Or some lawyers don't pass the bar on the first try.)

But in May 2000, Todd breaks into "BigLaw," and joins what was then Gray Cary as an associate attorney.  Things go well.  Or at least they go.  Six years later, in February 2006, Todd signs a “Confidential Resignation Agreement and General Release of Claims.”  He gets paid until August 2006, at which point he's officially let go.

Then, in October 2009, Todd sues.  His lawsuit essentially says that the firm agreed to provide him with disability benefits but "“undervalued” his benefits by computing them based on “artificially reduced salary figures.”"  So Todd says he wasn't getting all the disability benefits to which he says he was entitled.

The thing proceeds to arbitration, despite the fact that Todd fights going there.  But once there, Todd partially wins.  The arbitrator awards him $41,000 in contract damages plus $45,000 in emotional distress benefits.

But the arbitrator finds against Todd on all this other claims.  Gray Cary (now DLA Piper) is fine with the award, and moves to confirm it.  Todd again raises objections; he wants the award modified in his favor.  But he loses.

And the Court of Appeal affirms.

Todd's still a lawyer.  Up in San Francisco.  Nice place to be.  But as far as I can tell, he's now on his own.  Twenty years out of law school.

But at least he got his original award.  So that's something.  For the holidays.

Tuesday, December 15, 2015

Mondaca-Vega v. Lynch (9th Cir. - Dec. 15, 2015)

There's a reason today's en banc opinion took nearly two years to write.  After oral argument.  You can get why from the Order that describes the result:

"The petition for review is denied. Judge Hurwitz wrote an opinion joined by the full panel as to Parts I–III; by Judges Kozinski, Silverman, Rawlinson, Bybee, Murguia and Nguyen as to Part IV; and by Judges Kozinski, Silverman, Rawlinson and Bybee as to Parts V and VI. Judge N.R. Smith wrote an opinion concurring in part and dissenting in part, which Chief Judge Thomas, and Judges Pregerson and W. Fletcher join as to Part I. Judge N.R. Smith concurs in the result of (but does not join) Parts V and VI of Judge Hurwitz’s opinion. Judge Murguia wrote an opinion concurring in part and dissenting in part, which Judge Nguyen joins in full and which Chief Judge Thomas, and Judges Pregerson and W. Fletcher join as to Parts A, B and D. Judges Kozinski, Silverman, Rawlinson, Bybee, N.R. Smith, and Hurwitz would deny the petition for review. Chief Judge Thomas and Judges Pregerson, W. Fletcher, Murguia, and Nguyen would grant the petition for review."


People v. Wright (Cal. Ct. App. - Dec. 15, 2015)

I know it's probably futile to try to persuade anyone to read a 77-page opinion from the Court of Appeal.  There's nonetheless a lot of interesting stuff in there.

It's a murder case.  "Following years of strife between Jennell Wright and her former boyfriend, Le’Mar Green, some of it centered around their three-year-old son, defendant drove to Green’s home, waited for him to return from work, and shot him three times. A jury convicted defendant of first degree murder with a special circumstance finding of lying in wait."  That's fairly cold blooded.

But as the opinion explains, there's a history of conflict between the parties.  So the outcome was by no means clear.

Justice Humes' concurring opinion explains the only area of disagreement:  "Jennell Wright shot Le’Mar Green while he was sitting in his car, minding his own business. The two had had no direct interaction for two-and-a-half days before the shooting, and the only reason they were together at the time of the shooting was because Wright drove herself to Green’s residence, parked her car outside, and waited for him to return home from work. The majority concludes that the trial court erred by not giving heat-of-passion and provocation instructions because of the evidence presented about the estranged couple’s acrimonious history, which included conflicts about child rearing and custody. According to the majority, Wright could have shot Green in a heat of passion or without premeditation as a result of provocation that “developed over a ‘provocatory’ period.” Although I agree that a course of provocatory conduct can give rise to the need for such instructions in some circumstances, I disagree that those circumstances are present here. I therefore do not believe the trial court erred."

The Court of Appeal's opinion also gives some insight into how sausage is made in the jury room.  It also has to deal with the inability of some participants in the criminal justice system to keep their mitts off of Facebook.  Here's a taste:

"On February 20 at 6:38 p.m., two hours after court adjourned until February 25, and the day on which defendant testified, Juror No. 12 posted the following comment on her Facebook page: “WHOA….defendent (?) or defendant (?) or whatever…took the stand today. Velly interesting!” Several people “liked” and/or responded to the comment. At 6:45 p.m., Mr. P. wrote: “He’s guilty. Hang him.” At 6:52 p.m. Juror No. 12 wrote back: “I have to keep an open mind until next week!! They don’t know how easy that is for a blonde . . . feel that breeze blowing thru every day.!!” At 7:07 p.m. Ms. McK. posted: “which trial? Im [sic]watching the tearless Jody [sic] Arias describe how she killed her boyfriend is self-defense . . . yea right . . . the only time she cried is when she was discussing her own life . . . not one tear for him . . . psychopath. . . .” Juror No. 12 responded at 7:18 p.m.: “I have been on one over in Richmond since 1/22.”

Several people responded to the length of the trial, or expressed interest in learning about the case when it was over.

The next day, Ms. McC. posted: “Hey Miss [Juror], are you off today or are you FBing while in court? Do they let you keep your phones with you?” Juror No. 12 responded: “Yeah, my mind is already made up so I am FBing. LOL! Since we are always off on Friday they are just going to wait until Monday to give us the case so we got today off. I never have my phone with me but the 3 times I did, [I] thought it was off & it rings!! Now when we go in, everyone looks at me & asks if my phone is off! I hand it to someone else to double check it.!” Later, Juror No. 12 added: “Everyday but Fridays to Richmond. Hopefully it will be done this next week!” Mr. McC responded: “[Juror]. . . this is your social gold ticket! You’ll have a guaranteed invitation to every meaningful social event in Antioch (. . . that includes the possum round-up and stomp.) Nothing entertains like an inside look at the criminal just-ass system! Milk it, baby!”"

How hard is it to follow the trial court's instructions to keep your opinions about a pending criminal case to yourself?  Fairly difficult, apparently.  At least for some people.

Monday, December 14, 2015

Sturgeon v. County of Los Angeles (Cal. Ct. App. - Dec. 14, 2015)

You know it's an opinion by Justice Bedsworth when it (1) comes out of the 4/3, (2) contains footnotes, and -- most tellingly -- (3) describes the Greek mythological story that "Cassandra’s punishment for refusing to have sex with Apollo was a 'gift' of accurate prophecy accompanied by the curse of having no one listen to her."  Yeah.  That's Bedsworth.

Today's opinion is also worth reading on the merits.  It's about the money that judges get -- or don't get -- for supplemental "cafeteria" benefits.  Some Superior Court judges -- e.g., those in Los Angeles -- get a fair chunk of change (i.e., $57,000).  Other Superior Court judges -- e.g., those in Alpine and Inyo -- get nothing.  It's up to the County.

Someone brought a lawsuit about that, and won.  The Court of Appeal held that this practice violated the Legislature's exclusive obligation to decide how much judges get paid.

At which point the Legislature passed what the Court of Appeal described as an "interim" measure that said that "judges of a court whose judges received supplemental judicial benefits provided by the county or court, or both, as of July 1, 2008, shall continue to receive supplemental benefits from the county or court then paying the benefits on the same terms and conditions as were in effect on that date."  Which purportedly solved the problem, because now the Legislature had itself said how much judges should be paid; i.e., the exact same amount they had previously been paid.

But this gave rise to another problem:  What about judges who started getting benefits after July 1, 2008; i.e., new judges?  Aren't they still getting paid an illegal amount because the Legislature hasn't itself set their supplemental benefit amounts?

Hence the new lawsuit.  And new appeal.

But the trial court dismissed this lawsuit, and the Court of Appeal affirms.  On an interesting basis.

Justice Bedsworth says:  "Look closely at the words of subdivision (a), noting precisely how the Legislature defined the set of judges who are to receive benefits: 'Judges of a court whose judges received supplemental judicial benefits provided by the county or court, or both, as of July 1, 2008, shall continue to receive supplemental benefits from the county or court then paying the benefits on the same terms and conditions as were in effect on that date.'"  (Emphasis in original).  See what he means?  Grammar, my friends.  It's the court that's covered.  Not the judges themselves.  So under this reading, every judge -- even those who started after 2008 -- get supplemental benefits set by the Legislature.  The same that judges on that court got before.

Fascinating.  That's not how I interpreted the thing when I first read it.  But, yeah, he's right.  As a matter of grammar, that's indeed what it says.  And it solves the problem.

Nicely done.

Except for two things.

One, I'm confident that's not what the Legislature actually meant.  If only because the next paragraph of the statute clearly and expressly contemplates that judges after 2008 might not be paid this amount.  A provision that would be complete surplusage if the statute means what the Court of Appeal says it means.  Justice Bedsworth does some fancy footwork here by saying that the first paragraph is still unambiguous, there's a (totally routine) severance provision, etc.  Fair enough.  But the reality is that we're totally making up a statute, I believe, that the Legislature totally didn't intend.  Yeah, they said it.  But that's not what they meant.  Because their knowledge of grammar is much inferior to Justice Bedsworth's.  And I'm not sure that making up a statute that the Legislature didn't intend is the right way to solve a problem.  Even if that's indeed what the statute facially says.  (As indeed it does here.)

Second, I wonder if Justice Bedsworth's solution resolves this dispute, but creates even more difficult ones down the road.  Sure, we've "solved" the present constitutional problem by saying the everyone (even post-2008 judges) is entitled to get.  But I bet that's not how the statute was actually interpreted and applied by the counties at the time.  Which means the Court of Appeal's now likely bought itself yet another lawsuit; this time, by the post-2008 judges who didn't receive their supplemental benefits and now claim they're entitled to 'em.  Enjoy that one.  Since, yeah, they seem like they're entitled to win.

Plus, under the Court of Appeal's interpretation, aren't the 2008 benefit levels now set in stone?  Justice Bedsworth rightly tells the Legislature to get on the stick and to solve the problem that the same level of judges are getting paid different amounts in different counties.  But under today's Court of Appeal decision, the counties themselves can't solve this problem; e.g., Inyo isn't allowed to pay its judges the same as those in L.A. County because the statute sets the 2008 level of compensation as an unalterable amount (e.g., every county must "pay[] the benefits on the same terms and conditions as were in effect on that date).  It also means that if L.A. County, or any other county, at all changed from 2008 to 2015 any of the terms and conditions of its cafeteria plan, for any judge, boom, there's yet another lawsuit.  Since that's illegal too.

So, yeah, today's Court of Appeal decision solves a problem.  A big one.

But I wonder if it really accomplishes its stated objective.  Since the result of today's decision might be an even bigger -- and worse -- mess than that which preceded it.

Holloway v. Quetel (Cal. Ct. App. - Dec. 14, 2015)

It's tough to get a default judgment entered in your favor when you're an incarcerated pro se litigant.

But the Court of Appeal helps.

Friday, December 11, 2015

Javorsky v. Western Athletic Clubs (Cal. Ct. App. - Dec. 11, 2015)

You can charge older people more for goods and services than young people because the former have more money than the latter.

So holds the Court of Appeal.

I'm sure that the fancy-schmancy "luxury health" fitness club in the Bay Area here decided to charge 18 to 29 year-olds a (much) lower monthly fee than its older patrons because they were concerned that single people in their 20s in the Bay Area had much lower disposable income than their regular clientele.  Definitely.

It's not that the fancy club wanted to encourage the young and fit to populate its club as opposed to the old and pot-bellied.  No.  Definitely not that.  Had nothing to do with that.

It's just that 20-somethings that frequent luxury fitness clubs in San Francisco have much less money to spend on such things than 30- to 40-year olds with families.

Yep.  That's why.

(Sarcasm alert)

Thursday, December 10, 2015

Kirby v. County of Fresno (Cal. Ct. App. - Dec. 1, 2015)

In some ways, opinions like this one are depressing.  But in other ways, I could care less.

California voters passed the Compassionate Use Act, and then the Legislature passed the Medical Marijuana Program, in order to allow qualified patients to cultivate and use the drug or medicinal purposes.  But then recalcitrant municipalities -- like the County of Fresno here -- used their local zoning power to outlaw marijuana dispensaries as well as cultivation.  All of it.

So you could use marijuana.  It'd just remain illegal (and impossible) to buy and/or grow it.

The California judiciary concluded, as in the present case, that these municipal provisions are just fine.  They don't conflict with the voter-approved initiative or the Legislature's MMP.  Yes, a county can't criminalize the thing, so those provisions would be struck down.  But it can nonetheless make it impermissible -- e.g., a $1000/plant/day fine -- to actually grow the stuff.  Or sell it.  Anywhere in the county.  Effectively making the CUA and MMP meaningless.  Since if you can't get the drug, you can't use it as medicine.

On the one hand, this seems to me an extremely cramped version of preemption.  And overlooks the interplay between voter-approved initiatives that desire X and localities that deliberately attempt to frustrate X in the guise of ostensible police powers.

On the other hand, okay, fine.  The County of Fresno wins this battle.  Go ahead and make this stuff impermissible via zoning.  It's going to happen anyway.  It's just underground like it was before the CUA and MMP.  Congratulations.

Plus, now that we know how places like this respond to voter-approved initiatives, we'll be sure to make sure that the next ones prohibit you from engaging in similar chicanery.

In other words, as Mr. Townshend says, "We won't get fooled again."

Wednesday, December 09, 2015

Crawford v. J.P. Chase Morgan (Cal. Ct. App. - Dec. 9, 2015)

Justice Gilbert begins today's opinion by saying:

"The practice of law can be abundantly rewarding, but also stressful. The absence of civility displayed by some practitioners heightens stress and debases the legal profession. Those attorneys who allow their personal animosity for an opposing counsel or an opposing party to infect a case damage their reputations and blemish the dignity of the profession they have taken an oath to uphold."

I couldn't agree more.  Hear, hear.

The next paragraph of Justice Gilbert's opinion reads:

"In Green v. GTE California, Inc. (1994) 29 Cal.App.4th 407, 408, we said counsel's comments and actions at a deposition made the term "civil procedure" an oxymoron. In comparison to what occurred in this case, one could almost say the offending counsel in Green conducted himself with decorum."

Wow.  Really?!  This should be interesting.

Next paragraph:

"Here the practice of law became more than stressful; it was dangerous. An attorney representing himself threatened defendants' counsel with pepper spray and a stun gun at a deposition. When defendants moved for terminating sanctions, plaintiff filed an opposition that was openly contemptuous of the trial court. Such conduct can have consequences. (See In re Koven (2005) 134 Cal.App.4th 262.) The trial court granted defendants' motion for terminating sanctions. Plaintiff appeals the ensuing judgment. We affirm."

Dude!!!  You're kidding me, right?!  Threatening opposing counsel at a deposition with pepper spray and a stun gun?!  No way.

Yes.  Way.

The relevant conduct at the deposition included the following.  And I'm not even going to talk about all the crazy stuff that went on in this litigation beforehand:

"[The witness] and Crawford appeared [for a deposition] on April 21. Immediately after [the witness] was sworn, Crawford pointed a can of pepper spray at counsel's face from a distance of approximately three feet. Crawford said, "Mr. Traver [Chase's counsel], if things get out of hand, I brought what is legally pepper spray, and I will pepper spray you if you get out of hand." Crawford then produced a stun gun, pointed it at Traver's head, and said, "If that doesn't quell you, this is a flashlight that turns into a stun gun." Crawford discharged the stun gun close to Traver's face. Traver terminated the deposition."

Wow.  I don't know any other way to say it.  Wow.

How Mr. Crawford thought that'd be okay is beyond me.  Way beyond.

Oh.  One more thing.  Mr. Crawford is an attorney.  A graduate of California Western School of Law (down here in San Diego).  Albeit, as of earlier this year, no longer eligible to practice law pursuant to disciplinary charges brought against him.


This is just not the way you practice law.  Or even practice life.

So learn from Douglas Crawford's mistakes.  Someone who, I learned just a second ago, lives less than a mile from me.

To reiterate:  Yikes.

Leave those stun guns and pepper spray at home.

In Re Dakota J. (Cal. Ct. App. - Nov. 23, 2015)

"In October 2014, the Department of Children and Family Services (Department) received an anonymous referral regarding Faith. In response to the referral, a Department social worker attempted to visit mother and Faith at the hotel where they were living. Mother refused to open the door to her hotel room or to speak with the social worker."

That's not good.

"A few days later, another social worker attempted to visit mother at the hotel. Although mother initially opened the door to her room, when she learned the social worker was from the Department, she responded with profanity and threats of violence, then slammed the door."

That's worse.  Repeating the same problem that transpired earlier.

"At the social worker’s request, officers from the Inglewood Police Department came to the hotel to assist with the Department’s investigation. Mother refused to open her hotel room door, and would not comply with the officers’ verbal request to allow the social worker to see Faith and assess her condition. After the officers learned that there were outstanding warrants against mother, they obtained a key from the hotel attendant and opened the hotel room door. The officers entered the hotel room and observed Faith sitting on the bed. Mother said to the officers, 'I have a right to kill you here because I don’t like cops. I have a right to murder you here now that you are inside my home.' Mother attempted to strike the officers and, after a brief struggle, one of the officers used a Taser to subdue her. Mother was subsequently hospitalized with a broken arm."

That's even worse.  Claiming that you have a "right" to kill police officers, and then apparently attempting to do so, is not a good sign.  That sort of makes one wonder if you might have other beliefs that may endanger your children.

"With mother’s consent, the Department placed Faith temporarily with a family friend, Dorothy W., while mother was in the hospital. During an initial interview, Faith told the social worker she was nine years old but did not go to school. Faith said she left the hotel room only occasionally, when she would go with her mother to buy cigarettes. Faith also disclosed that mother smoked cigarettes and 'other stuff.'"

Ugh.  As I had suspected.

"The Department conducted a comprehensive investigation of the family over the next several weeks. After mother was discharged from the hospital, a social worker visited mother and Faith at Dorothy’s home. Mother appeared frustrated by the investigation and denied neglecting Faith. Mother initially refused to answer the social worker’s questions, stating 'you guys are in the process of me being in the Cold War. It’s international elite conspiracy. I don’t need to answer you.' Mother later explained to the social worker that she had a microchip implanted in the left side of her neck behind her left ear to protect her. Mother stated she 'did not abuse the power of the microchip even though she could have used it to find out classified information . . . .'

Mother became increasingly agitated during the interview at Dorothy’s house and asked the social worker if Dorothy could join them. When the social worker stated the interview was intended to be confidential, mother responded, '[t]here is nothing confidential with me because I am sure the people at pentagon [sic.] are listening through the microchip.' Mother also said the microchip implanted in her head sent her visual images, and the people watching her were 'mixed people who were alien species that look like people,' and were 'everywhere.' Mother stated she taught Faith how to identify the aliens because most people cannot recognize them and they can come through the television. She told the social worker she had been seeing white flies flying all over her recently, and also explained that the moon is a holographic satellite."

Oh my.  So it's even worse than I suspected.

"With regard to Faith, mother confirmed she was being homeschooled, but acknowledged the homeschooling was not being overseen by any educational entity. Although mother denied taking Faith to beg for money, she admitted that they 'go out to do ‘freedom of speech stuff’ which is asking for money.' Mother claimed Faith had been receiving regular medical care, but refused to provide the name of any physician who had ever treated Faith. Mother also acknowledged that Faith did not receive immunizations because 'they are poisonous,' and did not see a dentist because dentists are 'scandalous and the fluoride in the toothpaste is poisonous.'"

Say no more.  I get it.  That's all I really needed to hear.  (Though I appreciate the subsequent comment that "I don’t have to do anything that you guys said and I am not taking her to Harbor UCLA. Those government hospitals are where they implant microchip in people. I think you are working with the Zulus and you seem to be an agent.")

Tuesday, December 08, 2015

Richey v. Dahne (9th Cir. - Dec. 8, 2015)

This opinion helps give you a sense of the actual workings of the administration exhaustion process in prisons:

"As an inmate at the Stafford Creek Corrections Center, Richey filed a grievance on November 11, 2011, alleging that a guard denied him his “right to yard, a shower, and clean underwear.” Richey alleged that he did not know the guard’s name and that he described her “accurately” as an “extremely obese Hispanic female guard.” The grievance was returned to Richey with a note to “Rewrite- appropriately. Just stick to the issue of what happened, when, who was involved.” Richey submitted a revised grievance on November 17, 2011, containing similar allegations and similar references to the guard’s weight, with the words “who,” “when,” and “what happened” inserted into the narrative. The grievance was again returned to him with an order to “Rewrite as directed. Hispanic Female is adiquit [sic]. Extremely Obese is unnecessary and inappropriate.”

Rather than rewrite the grievance, Richey wrote a kite to the grievance coordinator on November 28, 2011, asking for clarification of the word “adiquit”and explaining that his description of the guard’s weight was “necessary and appropriate in helping him identify her,” as he did not know her name. He asked the coordinator “not to punish [him] by rejecting [his] grievance because [the coordinator] disagreed with [his] choice of language.” When Richey did not receive a response, he wrote another kite on December 7 asking “ARE YOU GOING TO PROCESS MY PROPERLY SUBMITTED GRIEVANCE OR WHAT? I’M NOT REWRITING IT SO DO YOUR JOB AND PROCESS IT.” Dahne responded in writing, “No, due to your decision not to rewrite as requested your grievance has been administraitevly [sic] withdrawn.”"

Not impressive.


Monday, December 07, 2015

People v. Dealba (Cal. Ct. App. - Dec. 7, 2015)

When I first started reading this opinion, I thought it was self-evidently correct.  But the more I thought about it, the less convinced I became.  Follow me on this:

It's battery when you hit someone.  It's assault when you swing at 'em.  That's what I remember from first-year law school.  Or something like that.

The actual doctrine is a bit more sophisticated than that, of course.  But those are the basics.

Now let's make it more complicated.  Imagine that Defendant (D) hits Victim (V) with a car.  D is still guilty of battery.  It's true that the car, rather than D, hit V.  But that doesn't matter.  V was still hit.

Ditto if D spits at V.  D caused the spit to fly, and it hit V.  That's battery.  And the slightest touching will qualify as battery.  If the spit had not hit V, it'd still be assault.  But it did.  Ergo battery.

Everyone agrees on everything I've just said.

Now, what about when a car driven by D hits a car driven by V?

In normal circumstances, I'd think that was clearly a battery too.  I'm imagining, for example, a head-on collision.  It's true that D didn't personally hit V.  It's also true that the car driven by D didn't itself hit V.  But the car driven by D nonetheless made something hit V; namely, the steering wheel, or the windshield, or whatever other part of the car V hit once she crashed.  That seems to me to count as battery as well.  If you do something that causes something else to hit the victim (or the victim to hit something else), that counts as battery.  You've put the whole process into motion, and that process resulted in victim getting hit.  Battery.

But now take a different kind of car accident.  Here, D's car hits V's car.  But V doesn't slam against anything.  There's no crash.  Is that battery?

Well, geeze, I don't know about that.  Take a tiny little tap on the rear fender, for example.  V barely feels it.  That might be a lot of things.  It might even be assault.  But is it really battery?

I think not.  Why not?  Because if the Victim didn't hit into anything, then there's not the "hitting" that I think is the essential element of battery.  (Technically, "touching," but I'll use the vernacular term instead.)  Victim doesn't hit anything, victim's not a victim of battery.  Right?

And that's true even if Victim had to do something in order to avoid the touching.  Say, for example, that D takes a swing at V, but V swerves out of the way, so does not get hit.  That's assault, for sure.  But it's not battery.  No one was actually hit.

Ditto for the tap on the fender, I think.  V didn't actually hit into anything.  So D isn't guilty of battery.  With me so far?  Or have I already screwed things up, in your mind?  Hopefully not.

So, with this backdrop, we're now to the present case.

Here, it's more than a tap on the fender.  Not infinitely more, mind you.  But it's sort of a side-swipe.  D drives along the side of V's vehicle and deliberately slides over into it.  Puts some scratches on the side of the vehicle.  Almost knocks off a rear view mirror, which is left dangling on some wires.  Less than a ram, but more than a tap.

What about that?  V says she was scared that D might run her off the road -- again, that's definitely assault, but we're talking about battery -- so had to grip the steering wheel tightly and correct to the left to avoid hitting other cars.  Which, to be clear, she never in fact hit.


The Court of Appeal says yes.  What was the "touching" at issue?  Justice Edmon says it's the fact that the victim had to correct the steering wheel; that, essentially, the force applied to the car "made" the steering wheel touch her, or something like that.

Again, when I first read the facts, I thought that whacking someone's car with your own car had to be battery, so was on board with this result.  But the more I think about it, the more I think, nope, in fact, that's not actually battery.  (Again:  It's definitely assault, as well as potentially other crimes, so don't think we're actually letting the guy go free.  The question is whether it's battery.  Period.)

Justice Edmon admits that there's no real precedent on this point.  But grabs two out-of-state cases to say that it should count as battery.  Put to one side the actual facts of those cases (and the fact that they are admittedly non-controlling); i.e., that in one of 'em, the defendant "entered the vehicle, held her down on the car seat, again threatened to kill her, and began striking her in the face with his fists [and] then choked her until she was unconscious."  In both of these cases, the impact was infinitely more severe than exists here:  in the first case, the victim was forced off the road, and in the second case, the collision spun the victim's car around.  When you're forced off the road and/or spun around, your body almost certainly gets smacked around; your head hits the steering wheel, your arms hit the seat, etc.  Whereas, in the present case, there's admittedly no physical contact.  With anything.  The only thing the victim says transpired is that she freaked out -- which, again, is assault -- and had to grip the steering wheel and make sure she didn't whack into the other parked cars on the road.

The Court of Appeal holds that's enough for battery.  That "it was precisely D.D.’s struggle to keep her Volkswagen from veering into the parked cars that constituted the unprivileged 'touching' inflicted on her by Dealba" since she "had to grip the steering wheel tighter and struggle to keep the Volkswagen from crashing into cars parked along the curb."


She was already touching the steering wheel.  Admittedly, she had to touch it a little bit harder, as well as turn it, as a result of defendant's conduct.  But that's not the kind of "touching" that we are usually talking about with battery.  We're talking instead about things had aren't previously touching starting to touch.  Spit with body.  Head with windshield.  Fist with face.  This seems qualitatively different.  And for good reason.

Indeed, if the Court of Appeal is right, I can think of lots of assaults that suddenly become battery.  D throws a rock at V's car.  The rock misses, but causes D to turn the steering wheel in fear (or in order to avoid the rock).  Now it's battery, right?  Because the D caused V to manipulate the steering wheel and that constitutes a sufficient touching.

Or take even your run of the mill assault.  D is in a bar and throws a punch at V.  V sees the intended punch and shifts his weight to the left, successfully avoiding the punch.  Under the Court of Appeal's analysis, the "struggle" to avoid the punch would seem to create a battery, as V was forced to change the degree of pressure on his pivot foot, which was previously touching the floor, in order to avoid a collision.  So just like the victim in the present case was "hit" by the steering wheel, the victim in that run-of-the-mill assault case would seemingly have been "hit" by the floor.  Increased pressure on both in order to avoid a collision after all.

That can't be right.

I admit that there's a fine line between assault and battery.  But it's still a line.  There needs to be a touching.  In your classic head-on collision, or even in a "run off the road" or "pit" example, that'll be easy to establish, because it will in fact have transpired.

But that didn't happen here.  The victim was legitimately frightened.  That's assault, and defendant should justly be imprisoned for it.

But it's not battery.  Because she didn't hit anything.  And the fact that she had to move -- or move the steering wheel -- to avoid such a collision doesn't make it any different than your classic assault, but not battery, in a bar fight.

So I initially thought that the Court of Appeal was right.  But I've decided that I think it's wrong.  At least on the evidence presented here, there was no touching.  So it's assault, not battery.

In Re Marriage of Smith (Cal. Ct. App. - Nov. 20, 2015)

This is an ugly divorce.  Made slightly less ugly by the equitable (and eminently correct) decisions of the trial court and Court of Appeal.  But ugly nonetheless.  A taste:

"The marriage of Mark and Kierstin was dissolved in 2002, but they have remained engaged in litigation regarding child custody and support, which has expanded to involve Cindy, who is Mark‟s current wife. . . . The trial court heard argument regarding attorney fees and sanctions on July 3, 2013. On November 4, 2013, it filed its order, making findings of fact and awarding $124,352 to Cindy, and $151,967, minus a specified offset, to Mark. . . .

The trial court‟s findings of fact included the observations that “[Kierstin] and her counsels‟ zealous advocacy crossed the line and became unreasonable, unduly burdensome and at times an exercise in bad faith. [¶] The court finds that the underlying case was not complicated but was made complicated by the overzealous litigation on [Kierstin‟s] counsels‟ part and [Kierstin‟s] complete abandonment of the litigation process.” The trial court described the proceedings as a “morass of litigation, the primary purpose of which was to ruin [Cindy and Mark] financially.”

The trial court further found Kierstin to have “no concern about the level of her attorney fees because her father [Robert Hemborg] was committed to paying those fees and costs whatever the amount.” 3 The trial court noted that “Robert Hemborg testified at trial that [Kierstin] was due to inherit six (6) million dollars upon his death,” and found that the amounts given to Kierstin for her fees and costs were “a loan against [Kierstin‟s] inheritance” . . . . The trial court further described Mr. Hemborg as testifying that “he intended on paying all of [Kierstin‟s] prospective fees that she incurred for her attorneys as well as any attorney fees and/or sanctions that may be ordered against her regardless of the amount,” as well as any fees and costs on appeal. In contrast, the trial court described Mark and Cindy as having “no savings or other liquidity that would enable them to finance the litigation on the same level as [Kierstin],” and observed that they “were forced to use credit cards to finance their attorney fees and costs.”

[Footnote]:  The trial court found Kierstin‟s attorneys had already been paid $322,653.39, and were owed another $19,975.50, as of July 3, 2013. In comparison, as of that date Mark had paid $123,257.65 to his attorneys, and owed another $103,559.30. As of June 20, 2013, Cindy had paid $54,009.06 to her attorneys, and owed another $122,660.34."

What a waste.

Friday, December 04, 2015

U.S. v. Lloyd (9th Cir. - Dec. 4, 2015)

When someone asks you to invest in a movie, don't walk away.  Run.

Because this may well be what you have to look forward to.

From Mexico With Love.  $14.2 million raised from investors.  $800,000 gross revenues.

Red Water.  Raised $2.8 million from investors.  Spent only $23,000 to make the movie.

The list continues.

Don't do it.  Seriously.  Don't.

Lyall v. City of Los Angeles (9th Cir. - Dec. 4, 2015)

You can tell that a lawsuit has taken a while to wind its way through the judicial system when the relevant facts say:

"The event was scheduled for the night of November 16 and was to feature several musical performers, along with artists working on screen prints and drawings. The organizers publicized the event broadly through MySpace and various email lists, and approximately 100 people attended."

MySpace.  How 2008.

Thursday, December 03, 2015

In Re Amanda A. (Cal. Ct. App. - Nov. 20, 2015)

Read the first eight pages or so of this opinion if you want a depressing glimpse into the life of a young woman.

Amanda A. is lost.  She might be lost for her entire life.  It's a life without meaning.  And the system is really at a loss for what to do here.  Understandably so.

It's got to be frustrating for everyone involved.  From the social worker to the trial court to the Court of Appeal.

A wasted life.  At least thus far.  Without much concrete hope of it getting better anytime soon.

Wednesday, December 02, 2015

Daniel v. Ford Motor Co. (9th Cir. - Dec. 2, 2015)

This is a crush.

Plaintiffs bought a Ford Focus between 2005 and 2011 and allege that it has a rear suspension alignment defect that causes premature tire wear; i.e., that the Focus required new rear tires for the first time between 12,000 and 20,000 miles.  They bring a class action raising a variety of statutory and warranty claims against Ford.

Ford moves for summary judgment.  The district court grants it.

The Ninth Circuit reverses.  On virtually every single point and cause of action.

So if you purchased a (crappy) Ford Focus in California during the relevant time period, my guess is that you're going to get some relief at some point.  Not now.  But eventually.

'Cause this case is going to settle.

Tuesday, December 01, 2015

People v. Williams (Cal. Ct. App. - Dec. 1, 2015)

There's a fine line between "dangerously mentally ill" versus "dangerously incredibly strange".  But it's a meaningful one.

Even if one's reaction might principally be to want some individuals in both categories to stay in a hospital forever rather than being let out on the street.

Take Mr. Williams, for example:

"In early 1993, defendant, then 51 years old, was arrested for possession of methamphetamine; he was also found in possession of drug paraphernalia and a loaded firearm.

While on bail in June 1993, defendant fired a machine gun and injured a police officer, and the next day shot at an officer and a police dog. A jury found him not guilty by reason of insanity (NGI) of two counts of attempted murder (§§ 664/187), two counts of assault on a custodial officer with great bodily injury (§ 245, subd. (b)(3)), unlawful possession of a machine gun (former § 12220), and interfering with a dog being used by a police officer (§ 600).

Defendant’s adult criminal record also included molestation of his 10-year-old stepdaughter, three convictions for driving under the influence of alcohol or drugs, and carrying a concealed weapon. He had no juvenile criminal record.

Two mental health professionals evaluated defendant in 1993. Both noted that defendant seemed angry and paranoid toward the police department and the justice system, likely due to abuse of methamphetamine and alcohol. One evaluator also opined: “[Defendant] is extremely rigid, and as long as his views of circumstances of the world is [sic] listened to, he is calm and cooperative. However, any attempt to confront that rapidly leads to escalation and probably to explosive behavior . . . and beliefs that he has a right to live his life and behave as he sees fit. This is not only the basis of his delusional disorder, but I think also on the basis of his paranoid personality.”

On July 11, 1994, defendant was committed to a state mental hospital. (§ 1026.) His maximum commitment date was April 5, 2014.

Defendant was admitted to Atascadero State Hospital in June 2009 after being transferred from Napa State Hospital, from which he had attempted to escape. When admitted, defendant claimed he had no motivation to be psychiatrically stable, to take medication, to avoid harming himself or others, or to avoid illicit drugs. Thereafter, he persistently refused to attend therapeutic groups in the hospital. . . .

According to the earliest report, defendant’s thought content was “devoid of overt delusions, hallucinations, and homicidal/suicidal ideation”; however, “insight and judgment are impaired.” His current offense was “fueled by his concurrent use of methamphetamine,” but also by his “persecutory delusions against police officers, rigid personality structure, and impaired insight/judgment.” He remained “defiant and oppositional.” His “deeply-rooted personality disorder” was the most likely cause of his “ongoing difficulties.” He denied mental illness, attributing his current offense entirely to methamphetamine use but refused to participate in substance abuse recovery treatment, and had no relapse prevention plan. Although he had not been violent in the past 12 months, his outstanding personality difficulties, combined with a relapse into alcohol and drug use, could “easily push him over the edge and lead him to act out violently with lethal consequences.” Defendant said he planned to “wait here for another five years until my commitment expires.”"

Monday, November 30, 2015

In Re D.M. (Cal. Ct. App. - Nov. 24, 2015)

Now that we're in the midst of the holiday season, the Court of Appeal lets you know whether it's okay to spank your child with a shoe.  Here's a quick summary:

"A mother used her hand or a sandal to spank her two children on the buttocks on those “rare” occasions when lesser disciplinary measures proved ineffective, but never hard enough to leave bruises or marks. May a juvenile court conclude mother has inflicted “serious physical harm” within the meaning of Welfare and Institutions Code section 3001 without first examining whether her conduct falls outside the right of parents, which exists elsewhere in California civil and criminal law, to discipline their children as long as the discipline is genuinely disciplinary, is warranted by the circumstances, and is reasonable (rather than excessive) in severity? (E.g., People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050 (Whitehurst).) We conclude that the juvenile court may not. Because the juvenile court’s ruling in this case relied on its categorical view that “hitting children with shoes” is “physical abuse” and “not a proper form of discipline,” we vacate the court’s jurisdictional finding as to mother and remand so that the court may in the first instance apply the reasonable parental discipline doctrine."

Hands versus belts versus switches versus shoes.  Bruises versus welts versus red marks.  These are the types of lines that separate permissible versus impermissible corporal punishment.

Monday, November 23, 2015

Ramirez v. County of San Bernardino (9th Cir. - Nov. 23, 2015)

The Ninth Circuit correctly reads Rule 15 in this opinion.  Unlike the district court.

Rule 15 allows you to initially amend your complaint with the consent of the other side and then, if you want, later file an amended complaint as a matter of right.  Even in the face of a 12(b)(6) motion to dismiss, and even after the deadline for the opposition to that motion has expired.

You're allowed to amend your complaint once "as a matter of right" (within specified time periods).  You don't waive, or exhaust, that right by previously amending your complaint via the alternative means of amendment; e.g., with consent of the court or the opposing party.  You've still got your amendment as a matter of right.

Only once.  But once indeed.

U.S. v. Pedrin (9th Cir. - Nov. 23, 2015)

Judge Noonan wants this opinion taken en banc.  He's on the panel (and dissents), so he gets to recommend such a course of action.  But he's a senior judge, so gets no actual vote.

Number of votes to take the case en banc?  Zero.

Thursday, November 19, 2015

Young's Market Co. v. Superior Court (Cal. Ct. App. - Nov. 19, 2015)

San Diego Unified is trying to figure out if it wants to acquire through eminent domain some property that's adjacent to a school.  So it wants to inspect it.  Principally for environmental contamination.  By contrast, the owners don't want to sell, and don't want the property taken either (even were they given just compensation), so they won't let the school district in.  The school district gets a court order that allows 'em to inspect the place and take soil samples, etc.

Is that permissible?

The Court of Appeal says it is, and I'm inclined to agree with 'em.  Though I have a question or two.

One question relates to the nature of the holding.  The trial court granted a right of entry pursuant to Section 1245.010 of the CCP, and that's what the Court of Appeal affirms.  But Justice O'Rourke's opinion repeatedly says that the entry is permissible because what San Diego Unified intends to do doesn't constitute a "taking" under the Constitution.  See, e.g., Page 18 ("As we explain below, the District's activities do not amount to a taking.")

But I'm not sure that's what the Court of Appeal really means; or, if it does, that's really right.

What San Diego Unified plans to do definitely deprives the landowner of a portion of the bundle of sticks that is its rights in the property.  Moreover, what the school district is planning to do is hardly a tiny little thing that has no meaningful effect whatsoever on that bundle.  San Diego Unified says it'll be on the property conducting testing for around two full weeks, and here's what it plans to do:

"[C]oring 10 locations of concrete using a two-inch diameter drill bit in concrete up to six inches thick; boring 33 holes within a 50-foot square grid partially outside of the building's footprint, 30 holes at three feet deep and three at 20 feet deep; collecting soil samples from the borings; collecting groundwater samples from the 20-foot borings; boring three 15-foot holes adjacent to the 20-foot holes per Department of Toxic Substances Control requirements; collecting two soil vapor samples; abandoning the borings by backfilling the three-foot holes with clean sand to near the ground surface and resurfacing with concrete; backfilling the 20-foot holes with bentonite grout to near the ground surface and resurfacing with concrete; surveying and inspecting the building to identify homogeneous areas, suspect materials and suspect surfaces; non-destructive X-ray fluorescence testing to test surfaces suspected to contain lead; bulk sampling by a Division of Occupational Safety and Health Certified Asbestos Consultant or Site Surveillance Technician of postage-stamp-sized pieces of building materials suspected to contain asbestos; [etc.]"

Dude!  Imagine that someone wanted to come onto your property and do that?  Would you be just fine with that?  Is that something that the government can really do with absolutely no constraint, at its whim, and without paying anything for its undeniably burdensome access to your land?

I think not.  Yet if the Court of Appeal really means what it says -- that San Diego Unified's conduct doesn't amount to a "taking" at all -- then that's the consequence.  Since if it's not a taking, then there is no duty of just compensation.  You're utterly powerless whenever the government wants to come on your property for a couple of weeks and repeatedly drill 20-foot holes through concrete.

There's nonetheless substantial reason to think that that's not what Justice O'Rourke means to say.  As San Diego Unified here was required to (and did) post $5000 to compensate the landowners for the value of the disruption to the property (and its tenant).  The landowner (and tenant) said that wasn't enough, and that they were entitled to a jury trial on this issue, but the Court of Appeal disagreed.

I think it may well be that temporary takings of a sort may perhaps be insufficiently burdensome to justify the full panoply of rights normally provided in a classic eminent domain action; e.g., the right to a full trial and compensation decided by a jury.  Including, in my view, in this case -- though I'll admit that I think the issue is a close one, since the burden here is definitely non-trivial.  So I may well be on board for the more limited holding that the landowner here doesn't get to stop the testing before a full jury trial on the value of compensation.

But as for whether the access to its land is, in fact, a taking -- well, it surely is.  At least in my view.  Maybe a sufficiently temporary taking as to be permissible.  But a taking nonetheless.  And as such the landowner is entitled to just compensation.  Maybe decided by a judge.  Maybe pursuant to an abbreviated procedure, with a bond posted in advance being sufficient.

But the landowner's entitled to something.  Because it's a taking.  So when the Court of Appeal appears to say otherwise -- in words that are at least facially clear -- I'm not sure I agree.

One other point.  The California Supreme Court will shortly decide a case that's darn similar to this one.  Here's what the Court of Appeal says about it:

"In Property Reserve v. Superior Court (2014) 224 Cal.App.4th 828, review granted June 25, 2014, No. S217738, involving the State of California's petition to enter properties for environmental and geological studies so as to determine their suitability for a proposed water tunnel, the California Supreme Court will address the following questions: "(1) Do the geological testing activities proposed by the Department of Water Resources constitute a taking? (2) Do the environmental testing activities set forth in the February 22, 2011, entry order constitute a taking? (3) If so, do the precondemnation entry statutes (Code Civ. Proc., §§ 1245.010-1245.060) provide a constitutionally valid eminent domain proceeding for the taking?"

The briefing in that one's complete.  I'd expect a decision by the California Supreme Court within the next six to eight months.

Given that reality, I wonder if the current opinion by the Court of Appeal is really worth all that much.  Sure, it's important to vacate any stay, and get underlying stuff moving (e.g., the inspection) since we don't want progress further delayed by a fight in the courts.

But there's a fair chance that the California Supreme Court will send this matter back to the Court of Appeal in light of whatever it decides in Property Reserve next year.  Given that fact, I wonder if it makes much sense to write a really long opinion (like the one here) rather than just a short one that resolves the matter (or merely dissolves any stay) and awaits the California Supreme Court.  Which will undoubtedly have a ton to say about the matter.

Just a thought.

Justice O'Rourke's opinion is definitely worthwhile.  And there's a lot to be said for it.

Though I might at least tighten up the language about whether what will transpire here constitutes an actual "taking".  Because it seems to me that it does.  At least a temporary one.  For which the owner of the property is indeed entitled to just, albeit very limited, compensation.

(Oh, and I happen to know a little bit about the underlying property as well, since the tenant on that property operates a go-kart facility that my kids have occasionally been to for various birthday parties over the years.  Trust me:  San Diego Unified's boring in the parking lot will be a hassle.  Not a huge one.  Not justifying anywhere near the $500,000 that the landowner contends would be appropriate compensation.  But a tiny bit of a hassle, that might in some small way deter someone at the margins from deciding to have a birthday party, or other activity, there.  So the landowner/tenant should indeed get paid.  Just not much.)

Wednesday, November 18, 2015

Harris v. Superior Court (Cal. Ct. App. - Nov. 18, 2015)

I'd be surprised if the California Supreme Court decided against grating review in this case.  Because it's definitely an issue that should go up.

It's an issue that implicates thousands (if not tens of thousands) of other cases.  Basically the scoop is this:  Voters recently passed Proposition 47 which allows defendants to petition (in various categories of cases) to reduce certain felony convictions to misdemeanors.  But the prosecution doesn't like that, particularly in cases in which there was a plea bargain; e.g., where defendant agreed to plead guilty to X offense, in return for Y sentence, but now seeks relief (as authorized by Proposition 47) to reduce the X offense to a misdemeanor and hence only have to serve a sentence of less-than-Y.

So does the passage of Proposition 47 allow the prosecution to retroactively withdraw from the plea agreement, even after the defendant has (as here) served years in prison, or do we assume that both parties (the prosecution and the defense) are bound because they're deemed to incorporate any future changes in the law?

The Court of Appeal here holds that the prosecution can indeed withdraw from the plea agreement in light of the subsequent passage of Proposition 47, since it deprived the prosecution of the "benefit of the bargain," and that such a withdrawal doesn't contradict the fundamental purpose of Prop. 47 even though most convictions are the result of plea bargains.  Justice Mosk dissents, and would decide the case the other way.

You gotta take this issue up, and definitely resolve it one way or the other.  Especially since there are analogous California Supreme Court cases going both ways:  one that says that a plea bargain can be retroactively withdrawn when subsequent legislation makes the offense to which defendant pleaded guilty not a crime at all (and hence would require his immediate release), but then a subsequent case that says that defendants aren't entitled to withdraw their plea even if subsequent legislation deprives 'em of a large part of the benefit of their bargain (e.g., sex offender registration).  You can't -- or at least shouldn't have a one-way ratchet that says that the prosecution can withdraw from a deal if the voters do something the prosecution doesn't like (as a way of getting around what the voters did) but the defendant can't do the same thing in similar circumstances.

Plus this is just too big, and important, of an issue to let it be resolved by the vagaries of which panel in the Court of Appeal a particular defendant happens to draw.

No need to wait for the issue to percolate further in the Court of Appeal.  Particularly given that the defendants at issue will be sitting around in prison, deprived of their (alleged) rights under Prop. 47, during this entire period.

Take the case up now and resolve it once and for all.

Tuesday, November 17, 2015

I.R. v. Los Angeles USD (9th Cir. - Nov. 15, 2015)

District Judge Real gets reversed.  But the case isn't reassigned to a different judge on remand.

So that's progress.

It's also an interesting resolution of the appeal, since under today's ruling, local school districts will be required to initiate due process hearings in tons of IEP settings -- hearings that ordinarily only take place when the parents (rather than the school district) requests them.  That'll turn a lot of IDEA proceedings on their head.

Which may or may not be a good thing.  But it's definitely a change.  And a big one.

Monday, November 16, 2015

Sterling v. Sterling (Cal. Ct. App. - Nov. 16, 2015)

I'd mention this opinion if only because you probably already know about its background.  This is the appeal of the fight between Donald and Shelly Sterling over the $2 billion sale of the L.A. Clippers.

The trial court allowed Donald to be removed as a trustee of the trust and hence allowed the sale to go forward.

The Court of Appeal affirms.

The appeal wasn't even close.  Donald was going to lose.  Easily.

But in doing so, not only does Donald's side lose, but it also gets slammed a bit.

As for Donald himself, the Court of Appeal publishes a variety of details that don't make him look especially awesome.  (Not that he's got much to lose in that department given, inter alia, his prior recorded statements.)  Including  that "Donald was unable to spell the word 'world' backwards" and "[w]hen asked to subtract 7 from 100, he could not perform the calculation past 93 (100- 7=93); he could not subtract 7 from 93 (93-7=86)."  Not that there's anything wrong with that.  But it does let everyone know -- if they didn't already -- that Donald's Alzheimer’s disease (which was confirmed through a PET scan) was fairly serious.

As for Donald's attorneys, well, they don't come out smelling awesome either.  Here's a footnote in which the Court of Appeal describes the "valuation expert" that Donald's attorney called in the trial court (whose name, by the way, is Dean Bonham):  "The probate court found Donald’s purported expert on valuation not credible. The court 'found his training and experience totally lacking including no high school diploma, no college degree, no formal training in accounting for valuation of businesses.' Additionally, he misrepresented his expertise when he testified."  That's not exactly going to cut it.

The Court of Appeal also doesn't obfuscate its take on Donald's appellate attorneys either (who are with Samini Law).  Here's a taste of that:

"Donald’s appeal suffers from numerous deficiencies. First, California Rules of Court, rule 8.204 requires that each brief support reference to a matter in the record with citation “to the volume and page number of the record where the matter appears.” [Citations] Donald repeatedly cites to matters without identifying the volume and page number in the appellate record where the item appears. He makes factual assertions with no citation to the record and cites to lengthy exhibits from the trial court without identifying their location in the record on appeal (most of which he failed to include in the appellate record). His reply brief contains hardly any citation to the record to support his factual assertions.

Second, Donald summarizes the evidence in the light favorable to his position and ignores the probate court’s credibility determinations. He has devoted most of his briefs to rearguing the facts and relies on evidence expressly rejected by the probate court. As a result Donald has forfeited his arguments on appeal based on the sufficiency of the evidence including his argument that the evidence does not support the probate court’s determination he was properly removed as a trustee. 

Third, by way of this appeal, Donald seeks the following relief: 'that this Court reverse the probate court’s orders and direct that the sale of the Los Angeles Clippers from [Rochelle] to Ballmer be undone.' Donald fails to show that he is entitled to this relief. He cites no authority for the proposition that this court can “undo” a sale after that sale was sanctioned under section 1310(b). (His argument directly contradicts the argument made in his writ petition that the sale could not be undone once completed.) Acts taken pursuant to section 1310(b) are valid regardless of the outcome on appeal. [Citations] Therefore, even if Donald is successful, the sale of the Clippers cannot be 'undone' and Donald seeks no other relief and demonstrates no other prejudice. Although this issue is dispositive, we discuss Donald’s arguments as if he were able to demonstrate prejudice."

We'll see if the lawyers are able (or willing) to control their client when we see whether Donald files a request for review by the California Supreme Court (and/or an equally frivolous petition for writ of certiorari from the U.S. Supreme Court).  If so, that'll speak volumes about the participants here.

In Re A.O. (Cal. Ct. App. - Nov. 12, 2015)

Justice Codrington's opinion repeatedly notes that the mother in this dependency case has "bi-polar" disorder.  She uses the dashed version of this word eight times in the opinion, but twice uses the term "bipolar" without the dash.

I'd drop the dashes and just go with the term "bipolar."  Which is what pretty much everyone else does as well.

P.S. - Judge Codrington subsequently edited her opinion, but with respect to substance, not form.

Friday, November 13, 2015

NLRB v. Fresh & Easy Neighborhood Market (9th Cir. - Nov. 13, 2015)

The Ninth Circuit issues this labor law opinion today, written by Judge Berzon.  I'll say as an aside that I'd loved to have been there when the petitioner, the United Food and Commercial Workers Union, learned that Judge Berzon -- a famous union-side labor law attorney -- was on the panel; moreover, that she was joined by Judge Pregerson (and a district judge sitting by designation).  Talk about a dream panel for your side!  The resulting party at the UFCW must have been a blast.

It'll perhaps come as no surprise to learn that the UFCW wins the appeal.  The Ninth Circuit decides that the subpoena that the UFCW issued to Fresh & Easy was not, in fact, properly served, but that the improper service didn't matter because Fresh & Easy didn't properly exhaust its remedies and did not suffer any prejudice from the improper service.  So the subpoena -- which was issued in advance of an NLRB hearing about an unfair labor charge -- should be enforced.

Fair enough.

There's a Fresh & Easy store very close to my home, and it's a place where my family often shops.  For that reason, plus the fact I read the news, I'm keenly aware that while the dispute at issue here was undoubtedly hotly contested when it was first brought (in January 2011), the relevance of this issue (and the subpoena) seems virtually nil at this point.  Since Fresh & Easy is now closing of its stores and going out of business.  Indeed, just last night, my wife stopped by there to try to pick up a few things, and described the place as being like an old-time Eastern European grocery store.  The shelves are nearly empty, with only the most random grocery items left for sale (albeit at huge discounts).  And even the things like the store's lights and fixtures have price tags on them.  If there's ever a place where a sign "Everything Must Go!" would be appropriate, Fresh & Easy fits the bill.

And it's not just my local neighborhood store.  Every Fresh & Easy is closing.  Forever.

So the respondent, Fresh & Easy, is now in bankruptcy, and is liquidating.  And won't have any (or at least any union) employees in very short course.

For this reason, I looked at the opinion to see if there was any discussion about whether the case is moot or not.  Since, at this point, I'm not at all sure that anyone cares in the slightest about whether Fresh & Easy did something wrong in December 2010 when it posted signs in front of four of its California stores that said "“Sorry but we don’t allow solicitation, loitering or the posting of flyers."  Similarly, I have some serious reservations about whether the NLRB hearing about this alleged unfair labor practice -- for which the subpoenas at issue were issued -- actually matters at all at this point, or will ever actually recommence.  Since everyone's being laid off anyway.  Any mention of any of this stuff, or whether it makes the case moot?

Nope.  No mention.  Not even in a footnote.

Which maybe doesn't matter on the merits.  Maybe since, at I type, there's still at least one unionized employee manning the cashier at a nearly-vacant Fresh & Easy store, the appeal isn't technically moot.  (Though I still wonder, given the realities of the situation, whether federal courts and/or the NLRB can grant any effective relief at this point, which might matter doctrinally.)

I guess we'll have to see.

I'll add one closing observation.  The appeal was filed in 2012.  Oral argument in the Ninth Circuit was heard on February 6, 2014.  The unanimous opinion, without a dissent, was issued today, over a year and a half after oral argument.

Twenty-one months is a long time to write an opinion.  Things can happen in the meantime.

Including but not limited to one of the parties going completely out of business and the case becoming effectively over.

U.S. v. Gasca-Ruiz (9th Cir. - Nov. 12, 2015)

The Ninth Circuit takes this case en banc.  But I don't recognize the caption.  What's the deal?

Maybe it's a published opinion I forgot about?  Nope.  No published opinion with that docket number.

Maybe it's the rare successful en banc call for an unpublished opinion?  Nope.  No unpublished opinion with that docket number either.

Maybe it's a case where, during oral argument, it became clear that the case should be taken en banc?  Nope.  No audio or video of the oral argument.

So I have to spend the money to go on PACER and find out the scoop.

No oral argument.  Argument was scheduled for September 4, 2015.  Then moved up a day to September 3, 2015.  Then, two weeks later, oral argument is cancelled altogether, and the case ordered submitted on the briefs.

Then a sua sponte en banc call on October 5, 2015, which then succeeds.

So the order says that the case will now be "reheard en banc," which is a little misleading.  Since it's never actually been heard.

Looking forward to the outcome.  Or even learning what the thing's about.

Thursday, November 12, 2015

People v. Villasenor (Cal. Ct. App. - Nov. 12, 2015)

Today's opinion demonstrates the perils of wearing a red belt.  At least in Sacramento:

"Armando Lopez was a member of the Norteño criminal street gang and routinely wore red to signify his membership in the gang. During the early morning hours of January 24, 2010, he and three of his roommates left a party and returned to their house on Kesner Avenue in North Sacramento, near Del Paso Heights. One of the roommates drove another roommate’s car to and from the party. On the way home, they stopped to pick up some fast food. Each of the roommates had been drinking. Lopez appeared to be the most intoxicated. When the other roommates got out of the car to bring the food into the house, he stayed in the back seat 'mumbling.' His roommates decided to leave him there while they went inside to eat. A short time later, Lopez managed to get out of the car. But instead of coming inside the house, he walked over to his car, which was also parked on the street in front of the house, and got into the driver’s seat.

As Lopez was changing cars, a group of Sureños was driving through the neighborhood. Raquel Benavidez, seated in the back seat behind the driver, testified . . . [that] when they passed a Mexican man sitting in a car on the side of the street, either defendant or his brother told Clancy to stop the car, which she did. Defendant and his brother got out of the car and walked over to the man. Defendant asked: “Do you bang? Where are you from?” Benavidez understood these questions to be a gang-related challenge. Defendant then reached into the car and lifted up the man’s shirt. Seeing a red belt, defendant said, 'he’s a Norteño,' pulled out a handgun, and shot him twice. Defendant and his brother then got back in Clancy’s car and the group drove away as defendant said: 'I hope he dies.'"

The lesson, apparently, being not to Drink and Wear A Red Belt.  Or, maybe, not to belong to a violent gang.

Something like that.

Wednesday, November 11, 2015

Public Integrity Alliance v. City of Tucson (9th Cir. - Nov. 11, 2015)

It's definitely a weird system.  There's a primary election in Tucson in which each individual ward chooses the person who'll represent the relevant party (from that ward) at the general election.  But then, in the general election, everyone in the city votes for one council member from each ward.  To represent the entire city.

Judge Kozinski says that's unconstitutional.  Judge Tallman says it's just fine.

Judge Kozinski writes the majority opinion.

Tuesday, November 10, 2015

In Re Marriage of Bonvino (Cal. Ct. App. - Nov. 10, 2015)

"Husband married Dawnel E. Stolteben Bonvino (wife) on October 2, 1993. He stopped making contributions to his retirement plans at Hill-Rom [his employer] as of the marriage date in order to keep his accumulated earnings in those plans as his separate property. . . . Husband found another job in sales at COHR, Inc. in Chatsworth, California. Wife stopped working after their son was born in 1996. They decided to move to a neighborhood closer to husband’s job and more suitable for raising a family. They found a property for sale in Westlake Village . . . . Husband applied for a loan in the amount of $328,000, which included $319,787.50 for the remainder of the purchase price and $8,212.50 for the loan’s closing costs and prepaid items. The loan application stated the title to the Westlake Village property would be held in the name of Frank Bonvino, as 'married sole and separate.' . . . The deed of trust reflects that Chase Manhattan Mortgage Corporation made the loan of $328,000. Wife did not sign the loan or escrow documents. On November 15, 1996, husband drove wife to a notary to sign a quitclaim deed for the Westlake Village property. Both husband and the notary told her that signing the quitclaim deed was a mere formality."

When you're making sure to keep your separate property separate during a marriage, you're probably trying to do so for a reason.  Whether your spouse knows so or not.

The marriage here does indeed eventually terminate.  Leading to a fight.  That the Court of Appeal holds the husband may well (at least partially) win.

Monday, November 09, 2015

U.S. v. Falcon (9th Cir. - Nov. 9, 2015)

No statute of limitations.  Not dischargeable in bankruptcy.

Pay back your student loans.

We're serious about it.

Friday, November 06, 2015

Buchanan v. Soto (Cal. Ct. App. - Nov. 6, 2015)

Everything that Justice Benke says in today's opinion is correct.

Except I'd delete the third footnote.

The Court of Appeal is correct that there was personal jurisdiction (as well as proper service) over the defendant, who received real property in California from a debtor as a fraudulent conveyance.  That the defendant, after the conveyance, went to Mexico, and evaded service of process there, does not change things.  Justice Benke rightly holds that he's got the requisite minimum contacts because he owns real property in California and the dispute (the fraudulent conveyance action) arose out of those contacts with the forum.

Footnote three, however, tangentially notes that defendant also owns other real property in California that did not give rise to the fraudulent conveyance action, and then cites the Supreme Court's opinion in McGee as indicating that even a single contact with the forum state may be sufficient for minimum contacts, thereby suggesting that the other properly alone might also create personal jurisdiction.

McGee did indeed say that a single contact alone might be sufficient.  But only if, as in McGee, that single contact gave rise to the cause of action.  However, here, even if the defendant had other real property in California, that wouldn't matter, since that property didn't give rise to the fraudulent conveyance cause of action alleged by plaintiff.  So it's irrelevant.  (Unless those contacts somehow created general jurisdiction, which is an issue that the Court of Appeal expressly doesn't reach.)

So it's fine to mention that the defendant had other property.  But I wouldn't include a footnote that suggests that under McGee that might be enough to create specific jurisdiction.  Because it wouldn't.

Thursday, November 05, 2015

Dorsey v. Superior Court (Cal. Ct. App. - Oct. 22, 2015)

Here's a neat little trick that you can use if you're worried about an attorney's fee clause in a contract (or, most likely, anywhere else, for that matter):

Sue 'em in small claims court.

Normally, if the prevailing party is entitled to fees, that's the deal.  If the other side spends $20,000 in fees defending even a minimal lawsuit -- here, for example, a lawsuit against an HOA -- and that side prevails and the fees are reasonable, you'll have to pay 'em.  Which may well deter you from filing a claim against 'em if you're not sure you're going to win.

But in small claims court, lawyers aren't allowed.  So that partially solves the problem.  No lawyers means no fee award.  And you can (usually) sue 'em for up to $10,000.  So that's a big upside that effectively limits your downside as well.  Plus very low filing fees (and a quick trial)!

The part that's interesting -- and the part that the Court of Appeal resolves in this opinion -- is what happens if the defendant loses in small claims court.  At which point it can "appeal" to the superior court, which conducts a trial de novo.  In a forum in which attorneys are allowed.  So are you now on the hook for the other side's massive attorney fees if you lose?  Since they indeed expended 'em?

The Court of Appeal says "No."

The statute limits the maximum attorney fee award in a small claims appeal to $150 (or $1000 if the appeal was in bad faith).  Justice Nares holds that this statute overrides the other statutes that provide full recovery of attorney's fees pursuant to statute, contract, etc.  These things should be short.  So the attorney's fees should be minimal.  While the other side might be able to recover $20,000 in fees if the plaintiff initially filed in superior (or limited jurisdiction) court, that's not the case if the matter ends up there pursuant to a small claims appeal.

So if the matter's (relatively) small, and you're not sure you're going to win, and you don't feel like taking the risk of a hefty attorney's fee award to the other side, small claims court may indeed be the way to go.

Wednesday, November 04, 2015

Bocanegra v. Jakubowski (Cal. Ct. App. - Oct. 27, 2015)

Boy, this isn't a good fact pattern.  Indeed, it's somewhat scary:

"On July 16, 2011, Palm Springs police officers conducted a traffic stop of a car that Bocanegra was driving. He was cooperative. He produced his driver’s license, showing his name as “Jose M. Gonzalezbocanegra.” The officers then arrested him on the theory that he was Jose Gonzalez (with no middle initial), the person named in an outstanding arrest warrant for a misdemeanor parole violation.

Bocanegra was booked into a Palm Springs holding facility, then transferred into and booked again at the Banning Sheriff’s Station, then transferred into and booked yet again at the Riverside County Jail, and finally transferred into and booked at the Los Angeles County Jail. He was repeatedly subjected to harmful and offensive touchings, in the form of painful and/or prolonged handcuffing. Throughout this process, Bocanegra protested that he was not the Jose Gonzalez named in the warrant, and that his driver’s license, social security number, fingerprints, and booking photos would prove this, but to no avail.

Jakubowski was a deputy district attorney for the County of Los Angeles. Starting on July 20, 2011, Jakubowski had the opportunity to free Bocanegra. Jakubowski had a file that included Bocanegra’s driver’s license, social security number, fingerprints, and booking photos, as well as fingerprints and booking photos of the person named in the warrant. Thus, Jakubowski was on notice that Bocanegra was wrongfully imprisoned, in that a reasonable person in his position would have inquired into the validity of the imprisonment. Meanwhile, Jakubowski did not promptly turn over these exculpatory items to Bocanegra’s defense counsel.

Bocanegra had a court date scheduled for July 21, 2011. His attorney was going to be there and could have secured his release. Los Angeles County Sheriff’s deputies, however, did not let him attend the hearing. Bocanegra “vociferously complained” about this.

That night, Los Angeles County Sheriff’s deputies placed Bocanegra in a cell with a violent sexual predator, who proceeded to forcibly sodomize him. These deputies were retaliating against Bocanegra for his complaints; they intended “that some unwanted sexual attack take place in the manner that it did.”

On July 25, 2011, Bocanegra finally had his first court appearance. Jakubowski was present; he argued to the court that Bocanegra was, in fact, the person named in the warrant and should not be released. The judge, however, examined Bocanegra’s booking photographs and fingerprints, realized he was not the person named in the warrant, and released him. The judge even apologized to Bocanegra from the bench."

If even half of those allegations are true, it sounds like a darn good complaint.

Not against the prosecutor, mind you.  Since, as the Court of Appeal says, "we will hold that Bocanegra adequately alleged that Jakubowski was liable for false imprisonment; we will also hold that statutory prosecutorial immunity (Gov. Code, § 821.6) did not apply to the false imprisonment claim. However, the demurrer had to be sustained based on common law prosecutorial immunity."

Still.  A very bad set of facts.

U.S. v. Dreyer (9th Cir. - Nov. 4, 2015)

Here's something you rarely -- incredibly rarely -- see in an en banc opinion:  a member of the panel changing her mind.

Judge Berzon says:

"I join fully in the majority opinion. I write separately to explain why I am comfortable with the holding that suppression is not warranted, although the panel opinion I authored held otherwise."

The flexibility to change one's might in light of additional argument and analysis.  It's an awesome attribute of a judge.  Albeit virtually unprecedented.

Tuesday, November 03, 2015

In Re Marriage of Cecilia W. (Cal. Ct. App. - Nov. 3, 2015)

California law requires each parent (even if they're divorced) to support an adult child if they're disabled and unable to support themselves as a result.

"Robert suffers from Tourette's syndrome and attention deficit hyperactivity disorder (ADHD). Tourette's symptoms include affected motor skills, tics, and accompanying issues, including learning disabilities and emotional management issues. Robert exhibits all of these symptoms when stressed.

So Robert may potentially be disabled.  If, as a result, he's unable to support himself, both Father and Mother have a duty to help him; e.g., to provide child support to the other parent.

The trial court holds that Robert's indeed in this situation.  In some circumstances, that may well make sense.

But let me add some quick additional facts about Robert:

"Robert graduated from high school on time. He then attended Southwestern College, a community college. There, Robert earned two associates degrees and achieved a 3.3 grade point average, but took five years to graduate due to class withdrawals. Robert also needed accommodations, including intervention by Disabled Student Services, less distracting test settings, extra time for tasks, and tutors (including private math tutoring). In addition, he was admitted to urgent care and the emergency room twice during one semester because panic attacks caused tachycardia on one occasion and cardiac arrest on the other.

Since August 2012, Robert has been enrolled at the University of California, San Diego (UCSD).  He has had similar accommodations, including Disabled Student Services intervention, quiet test facilities, and flexibility for test completion time, as well as use of a laptop and tape recorder in class. He also has had a private Spanish tutor. Robert generally has earned B-range grades at UCSD."

The Court of Appeal reverses the trial court's decision because the trial court applied the wrong legal standards, and remands to the trial court to try again.

I'll add only one thing to Justice Huffman's opinion.  If Robert is indeed disabled, and unable to support himself under California law (e.g., unable to make a living), that result won't say much about either UCSD or Southwestern College.  At which Robert has earned a B+ and B- grade point average, respectively.

If you're able to graduate from college -- and fairly good ones, at that -- and are still unable to support yourself, that says something.