Friday, February 27, 2015

City of San Marcos v. Loma San Marcos LLC (Cal. Ct. App. - Feb. 27, 2015)

It's not that I don't feel bad for the defendant in this case.  I do.  It turns out that it was the last holder in a game of hot potato.

But a deal's a deal.  Even if it's a bad one.  So it loses the property.

Shortened to its essentials, here's the deal:

There's a 15-acre plot of land in the City of San Marcos that's being used for a recycling center.  The recycling center then closes, and the land is vacant for around a decade.

Eventually someone gets the bright idea to turn the place into a movie studio.  So the property owner enters into a deal with the City in 2004 to (1) get a conditional use permit to allow the property to be used as a studio (rather than recycling center), in return for (2) payment of $2.3 million in mitigation fees for the improvement of roads, etc. around the property.  The City doesn't demand payment of the $2.3 million immediately; nonetheless, it's a lien on the property, and various installment payments are due at the end of 2006.   The deal's negotiated, signed, delivered, and all the parties are sophisticated and represented by attorneys.  Fair deal.

Company A then buys the land from the original owner, fully aware of the deal and the liens on the property, for $8.75 million in February 2005.  Company A's also no dummy.  One year later, Company A sells 72% of the their interest in the property for $9 million to Company B.  That's a quick million-dollar-plus profit in less than a year.

Companies A and B are still working on getting a movie studio in there.  They ask the City for more time, and it give it to 'em, but the extra time runs out in early 2007.  Then they ask the City for yet more time, and the City gives it to 'em again, and there's a whole formal extension deal signed.  But there's still the $2.3 million due, and it's still a lien on the property, with a right to foreclose if it's not paid.

Company B's still trying to get a movie studio in there, but in the meantime, it uses the land for a commercial car photo shoot, and then rented as storage space several times.  The City wants there to be a movie studio too, so it hobbles along with these interim arrangements.  But in 2009, having still not been paid, the City essentially says "Enough.  Pay us."  But Company B doesn't.

So in 2010, the City exercises its right under the agreement to terminate the deal, and continues to demand its $2.3 million, but Company B still doesn't pay, so later that year, it files suit to foreclose on the land.  Company B fights, claiming that the deal is unconscionable, illegal, etc.  And I'm somewhat sympathetic to this view, since (as far as I can tell) the City's getting paid $2.3 million as mitigation fees for improved streets, etc. that it now doesn't actually have to do since there's not, in fact, going to be a movie studio there.

But a deal's a deal.  So, in 2012, the trial court -- after a five-day bench trial -- rules in favor of the City. And today the Court of Appeal publishes its opinion affirming the trial court.

Don't make bad deals.  And if you do, don't be surprised when you're held to them.

Thursday, February 26, 2015

People v. Johnson (Cal. Supreme Ct. - Feb. 26, 2015)

Can you guess what this appeal is about?  Can you guess the result?  Here are the first three sentences of the opinion:

"A jury convicted defendant Jerrold Elwin Johnson of the first degree murder of Ellen Salling with the special circumstances of robbery murder, burglary murder, and carjacking murder, as well as first degree burglary, first degree robbery, and carjacking. [Cites] The jury also found that defendant personally used a deadly and dangerous weapon, and the victim was 65 years old or older. [Cites] Defendant admitted that he had suffered one prior serious or violent felony conviction and had served one prior prison term."

There is one part of the opinion that merits at least brief mention.  The majority holds that when you enter a home, find a 76-year old woman baking cookies, and beat her to death with a tree limb, that counts as a "carjacking" as long as -- once she's dead -- you walk out of the kitchen, across a breezeway, enter a garage, and take the dead woman's car.

Justices Werdegar and Liu don't agree.  But they're outvoted.

Tuesday, February 24, 2015

People v. Soria (Cal. Ct. App. - Feb. 23, 2015)

Nothing good ever comes out of the following fact pattern:

"On Saturday, November 28, 2009, around 8:00 or 9:00 p.m., the 44-year-old defendant was home, drinking beer, and playing video games, when his son Theo brought home three friends and a large bottle of vodka. The group of four -- all of whom were about 20 years old -- consisted of defendant’s son, the son’s new girlfriend, Karolyn Hawley, the son’s friend, Heriberto Corral (“Beto”), and Beto’s girlfriend, J.W., who is the victim. They had a plan to get drunk. . . ."

Oh my.

So many different bad things can happen in a situation like this.  In this particular case, the offense for which defendant was convicted is rape of an unconscious person.

The evidence against the defendant is not, however, as strong as you often see.  There are no eyewitnesses to the offense.  The victim has no memory of what transpired.  There's no bruising or other unambiguous evidence of force.  There's no confession, either, even after a subsequent pretext call (in which the defendant continued to insist that he, too, had no memory of what transpired, although he often says that he's "sorry" that the victim was apparently raped while unconscious).

Sure, there's some very minor evidence against the guy.  His slippers were near her bed.  Stuff like that.  Evidence that might perhaps be explained by the fact that the victim vomited, passed out, and had to be taken care of by somewhat.  

But the strongest evidence against the defendant was -- as you might imagine -- the DNA evidence.  That's what nails him.

With one not-so-tiny problem:  The DNA does not match.

This is probably why the first jury ends up hung.  But the second jury convicts.  Because while the DNA doesn't perfectly match, it definitely comes close.  The prosecution's witness compares the DNA sample inside the victim with the defendant's DNA at the standard 15 places and they match at 14 of 'em.  But not at the 15th.  The expert has a "crossover" theory about the 15th location, but admits that there's utterly no scientific evidence for that theory.

So that's a problem.  The DNA doesn't even match.

But it comes close.  And while you might think that "close" only counts in horseshoes and grenades, here, close is close enough.  For the jury as well as for the Court of Appeal.  It's enough evidence to even establish guilt "beyond a reasonable doubt".

Is the "slipper" evidence or the pretext call really that strong?  Nope.  No way.  But I think Justice Murray gives a pretty accurate description of why the defendant ultimately gets convicted (and that conviction gets affirmed) when he says:

"The DNA testing of the sperm fragment from the vaginal swab matched defendant at 14 loci. It is uncontroverted that the major profile is not Beto and it is not defendant’s son. That leaves the only other male in the house, defendant. Unless there was some unknown male at the house who had intercourse with the victim who had the exact same profile at every location except one, where a potential triallele is located, then it must have been defendant who was the perpetrator."

So close is indeed good enough.  Because everyone else isn't even close.

Monday, February 23, 2015

In Re D.D. (Cal. Ct. App. - Feb. 23, 2015)

"On November 1, 2013, San Francisco Police Officer Duncan Duffin and his partner, Francisco Chicas, were working as a robbery abatement team. A series of armed and unarmed robberies had been committed within two blocks of the Glen Park and Balboa Park BART stations, mostly by young males (teenaged or in their early 20’s) who were wearing loose-fitting dark-colored hooded sweatshirts or pullovers and pants. At about 4:00 p.m., the uniformed officers were patrolling the area around the Balboa Park station in an unmarked vehicle. They saw two teenaged males wearing hooded sweatshirts and blue jeans standing in front of a parked Pontiac Grand Prix in a San Francisco Municipal Railway (Muni) employee parking lot near a Muni maintenance yard. The lot had signs indicating it was for Muni employees only and prohibiting trespassing.

The officers pulled over, and Duffin noticed smoke in the vicinity of the young men (D.D. & K.H.). He also saw D.D. look directly at the officers and then turn and enter the front passenger’s side of the Grand Prix. As the officers exited their car and approached the young men, Duffin smelled a strong odor of marijuana. He asked K.H., “Who has got the weed?” K.H. admitted having marijuana.

Duffin motioned with his hand for D.D. to exit the Grand Prix. When D.D. got out, Duffin asked for his name and identification. D.D. provided a false name and said he did not have identification. Dispatch had no record for the name given by D.D. D.D. was advised that Duffin and Chicas were investigating a series of robberies in the area. D.D. denied having any weapons on his person and did not tell Duffin who owned the Grand Prix. When asked why he was on Muni property, D.D. answered hesitantly and avoided the question. D.D. appeared apprehensive and nervous, and he kept looking left and right up and down the street without making eye contact with Duffin. As D.D. moved around, he kept repositioning his right hip away from Duffin: D.D. stood in a bladed stance, with one foot forward and one foot in the back at about a 45 degree angle and, as Duffin moved, he would pivot so his right hip was always pointed away from the officer. Duffin testified that, based on his experience and training, he believed D.D. was carrying a weapon at his right hip.

Duffin decided to search D.D. for weapons out of concern for the officers’ safety. D.D. placed his hands on the back of his head, and Duffin used his left hand to secure D.D.’s hands. Using his right hand, Duffin lifted the right side of D.D.’s sweatshirt and saw a semiautomatic black handgun at D.D.’s right hip, tucked in his waistband. Duffin removed the gun, placed it on the ground, and arrested D.D. Chicas examined the gun, a semiautomatic nine-millimeter Glock pistol, and determined that it was loaded with a live round in the chamber. It was stipulated that D.D. was 15 years old at the time of the incident."

That sounds like pretty good police work to me.  And I agree with every word of Justice Bruniers' opinion that holds that what the police did was proper.  That the police officers "saw two young men standing in a nonpublic Muni parking area, observed smoke near the men, and smelled marijuana" did indeed "provide some objective manifestation that D.D. and K.H. might have been trespassing and smoking marijuana, thus justifying an investigatory detention," and the fact that these kids "were in the general vicinity of a recent spate of robberies and were in clothing and of an age group that generally corresponded with descriptions of the robbers" rightly "added to the officers’ reasonable suspicion of criminal activity."  Similarly, while I understand the minor's argument that the police could not be sure that the minors were trespassing "because he and K.H. could have been Muni employees," neither I nor the Court of Appeal are ignorant of the world.  Justice Bruniers is right that '[g]iven the suspects’ young age, casual clothing, and apparent leisurely, lingering behavior smoking in front of a parked car, the officers had objective grounds to suspect D.D. and K.H. were not Muni employees with a legitimate reason to be present in the parking area, but were knowing trespassers on the clearly marked private lot."

What both the police as well as the Court of Appeal does here makes a ton of sense to me.

Fischer v. Time Warner Cable (Cal. Ct. App. - Feb. 23, 2015)

Of course you want to sue Time Warner Cable.  Hardly a sympathetic defendant.  Of course cable rates are too high.  Undisputed.  Of course it's absurd that cable companies should allow consumers to pick stations a la carte rather than cramming dozens of channels down your throat that you'll never watch in a million years.

Finally, for those in the L.A. area, of course it's absurd that Time Warner paid $11 billion to broadcast the Dodgers and Lakers games and included those games as part of its basic cable package, raising basic cable rates $9/month for everyone -- even the 60% of consumers who have no interest in watching those games -- rather than permitting consumers to opt out.

But while you can (justly) bitch about it, you can't sue.  The Court of Appeal holds that state law unfair competition claims are preempted by the various federal regulations that govern the cable industry.  So you're stuck paying for something you don't want.

Whenever I think of cable television, I think of manifest market imperfection, and how our antitrust and other laws don't seem to capture whatever's going on here.  Sure, I understand that at least in theory, the cable companies compete with plenty of alternatives:  satellite, broadcast, Netflix, internet, etc.  So, in theory, the cable companies don't have a monopoly, and hence are subject to competitive pressures.

But if that's really true, then why do we see the world as it is?  Why are people as fundamentally unhappy with the cable companies as they are?  Today's example is a perfect example:  Why, in a truly competitive market, would cable companies be able to effectively cram down an expensive service on half its customer base that didn't want it?

The truth is that they couldn't.  These competitors do indeed "compete" at the margins -- and I say this as someone who switched off cable long ago -- but only at the fringe.  For the core population, there's really not a tenable alternative.  So the cable companies can, and do, put the screws to them.  As much as they want.

We love to believe in the power of a competitive marketplace.  I wonder if our belief in this regard is really tenable in a wide variety of contexts.  With cable television being an extraordinarily good example.

Admittedly, in the long run, I think this will all work out.  Cable will die.  And there are tons of people who will dance on its grave.

But in the meantime, people continue to be (effectively) forced to pay for things they manifestly do not want.  In an industry that I'm not at all confident is, in fact, substantially constrained by market -- or legal -- forces.

Witness today's case.

Friday, February 20, 2015

Rodriguez v. Brill (Cal. Ct. App. - Feb. 20, 2015)

Sometimes the pages of the California Appellate Reporter can substitute for a gossip magazine.  Witness this case.

Here's the front-page teaser:

"Brill is an attorney in the Bakersfield area. He and Rodriguez lived together as husband and wife for a number of years. When they separated, Rodriguez filed this action in 2006 against Brill, asserting that Brill promised to support her for the rest of her life and, in exchange, she gave up many opportunities to obtain the education and training she would need to support herself."

Ooh!  Palimony. Against an attorney.  This one.  Plus testimony that you don't normally expect in a palimony action against an attorney.  Like the former partner saying:  "I have been homeless since my ex-husband left me. I stay here and there, and because I grew up in Delano, I went and rented a P.O. box [there]. My daughters are unemployed. They are homeless, too.”

I'm quite confident that there are many sides to the various competing stories here.  And the underlying appeal concerns hypertechnical procedural stuff about terminating discovery sanctions, the applicability of mandatory relief for attorney negligence, etc.

Still, for stuff that's all about procedure, there are definitely some gritty details here.

In the end, it looks like Mr. Brill will have to now actually go to trial and defend his former partner's palimony claim.  Because the Court of Appeal reverses the trial court's denial of relief under CCP 473(b).  So unless there's another procedural debacle in the future -- which is certainly possible -- it looks like Kern County may get an interesting trial sometime soon.

Roy Allen Slurry Seal, Inc. v. American Asphalt South, Inc. (Cal. Ct. App. - Feb. 20, 2015)

Don't you love it when the Court of Appeal clearly summarizes the case -- and holding -- in two sentences at the outset of the opinion?

I know I do.

Justice Rubin starts today's opinion with:

"May the second-place bidder on a public works contract state a cause of action for intentional interference with prospective economic advantage against the winning bidder if the winner was only able to obtain lowest bidder status by illegally paying its workers less than the prevailing wage? We hold that the answer is yes if the plaintiff alleges it was the second lowest bidder and therefore would have otherwise been awarded the contract, because that fact gives rise to a relationship with the public agency that made plaintiff’s award of the contract reasonably probable."

Pretty clear and concise, eh?

Justice Grimes dissents from the court's conclusion.  But I don't think anyone can disagree with the style.  It's a great way to start an opinion.

Thursday, February 19, 2015

Calvo Fisher & Jacob LLP v. Lujan (Cal. Ct. App. - Feb. 19, 2015)

Lawyers can make a lot of money.  They can also spend a lot of money.

All of which happens here.

Which lawyer would you rather be?  You could be David Lujan -- a big-time attorney in Guam -- who (among other things) took a case in which he proved to a jury that his client, Junior, was an heir of Larry Hillbroom, who was one of the founders of DHL Worldwide Express and who disappeared while piloting a plane near Saipan.  That victory won his client over $90 million.  For which Lujan received a contingency fee of roughly 38 percent.

Not bad.  Not bad at all.

So that sounds like a pretty good choice.

But with every silver lining there's a cloud.  Eventually, Junior reaches the age of majority and files a lawsuit against Lujan in California, represented by Girardi Keese, that claims that Lujan conspired with others to fraudulently increase his contingent fee from 38 percent to 56 percent.  That's a big-time suit itself, seeking multiple millions.  Plus Lujan eventually wants to file a defamation suit against Girardi Keese (in Guam) for stuff it allegedly said about him in a press conference, and some additional ancillary litigation as well.

Which means Lujan's going to need a lawyer.

Enter Lujan's attorney friend, Eduardo Calvo.  Also in Guam.  Who agrees to represent Lujan in the various actions.

Not for free.  Not at all.

Calvo ends up billing almost $1.5 million to Lujan.  Who only pays a little over $300,000.  These two former friends talk a ton about the various lawsuits -- pretty much every day -- but also fight a ton about the amount of fees that Lujan's being charged.

Hence the future lawsuit between Calvo and Lujan.  Over fees.

Ultimately, that case goes to trial.  And Calvo wins a little under a million bucks -- the full amount he sought.  Plus another $300,000+ in prejudgment interest.

Not bad.  Not bad at all.

But it gets even better.  Then Calvo files a motion for costs, which is (of course) disputed, but he gets nearly all his costs awarded.  More critically, he also files a motion for fees.  Which he also wins.  To the tune of another $1.5 million-plus.

So choosing being Calvo, rather than Lujan, doesn't sound so bad either.

Mind you, both of 'em end up with tons of money.  But both of them also end up with huge, years-long headaches.  Plus one fewer friend.

But need I remind you that we're talking multiple millions of dollars?

Tough choices.

Wednesday, February 18, 2015

In Re Davis (9th Cir. - Feb. 17, 2015)

I'm not a bankruptcy guy, but I'm nonetheless generally familiar with Chapter 7, as well as Chapter 13, bankruptcies.  Even Chapter 11 (for businesses) rings a bell in my head.  Indeed, I can honestly say that I even know what Chapter 9's about:  municipal bankruptcies.  All of this having never taken the class in law school.

Mind you, I may well have just exhausted in three sentences everything I know about the subject.  But I have still heard of the stuff.

I'll nonetheless forthrightly admit that until I read this opinion, I'd never heard about Chapter 12.  Did not ring even the most subtle of bells.

But now I know.

It's about bankruptcies for farmers.  Presumably giving them an even more favorable break than other types of bankruptcies.

Carolyn Davis gives Chapter 12 a shot in this case after already getting a discharge under Chapter 7.  She's looking for more favorable treatment, but her petition doesn't exactly capture one's heart, since the "family farm" at issue is an 110-acre vineyard in Paso Robles.

The legal problem she has is that her "aggregate debts" exceed the approximately $3.5 million cap that is in Chapter 12.  At least when you count the total amount of her debt that had been previously wiped away under Chapter 7.

So the question for the Ninth Circuit is:  Do those debts count against the cap?

The answer is:  Yes.  Debts are debts.  Even when they've been wiped out in another petition.

So now I know two things about Chapter 12 bankruptcies.

And will almost assuredly die before I know three.

Tuesday, February 17, 2015

Aghaian v. Minassian (Cal. Ct. App. - Feb. 17, 2015)

You'd ordinarily think that a lawsuit between a citizen of Country X and another citizen of Country X regarding the ownership of property in Country X would be decided in . . . Country X.

Particularly when, as here, one of the defendants resides in Country X and isn't subject to jurisdiction in California.  The fact that a California tribunal wouldn't have the power to change the ownership of the disputed property -- located (again) in Country X -- would seem to lock things down.

Our fancy legal name for that is forum non conveniens.  We generally stay or dismiss lawsuits filed in our forum in that situation in favor of alternative litigation in Country X.

Except when Country X is Iran.

The Court of Appeal notes that Iran might look like a regular civil law country.  But it's exceptionally displeased that -- as is undoubtedly the case -- the judiciary in that country is heavily influenced by the position of the government, and probably doesn't like lawsuits by people (as here) who fled Iran after the overthrow of the Shah and are now trying to get that property back.

Plus there's the fact that the plaintiffs here aren't Muslim, and that one of them (gasp!) is a woman.

There's substantial reason to believe that Iranian courts aren't going to like that.  Especially when those tribunals have an express rule that the testimony of a woman is only worth half that of a man.

Iran can, of course, have whatever type of judiciary it'd like.  But when the remedy there amounts to "no remedy at all," we can refuse to dismiss lawsuits on forum non conveniens grounds.

As the Court of Appeal does here.  Reversing the trial court.

In Re Emily D. (Cal. Ct. App. - Feb. 17, 2015)

"On November 7, 2013 the Department received drug testing results for Elizabeth []. Elizabeth had tested positive for methamphetamine (at an extremely high level), amphetamine and marijuana. . . . When confronted with the test results, Elizabeth again denied methamphetamine use but confided to the worker she had been sleeping with a neighbor who used methamphetamine and that her positive test may have resulted from those encounters."

I'm pretty sure that's not how it works.  So is the Court of Appeal.

Monday, February 16, 2015

People v. Braslaw (Cal. Ct. App. - Jan. 30, 2015)

Here's a cautionary tale.  Drinking and sex.

It's also an interesting factual recitation.  Compare the Court of Appeal's opinion with a contemporary newspaper account of the events.  The Court of Appeal uses "Jane Doe" and initials, whereas the more robust newspaper story uses actual names.  The Court of Appeal mentions that the victim "phoned her then finacee, who is now her domestic partner," whereas the newspaper mentions that the victim is "openly gay" and that her then-fiancee was a "police officer in Las Vegas."  Plus the newspaper has a mug shot and more details about the defendant.

I'm not saying anything normative here.  Just describing the factual recitation.

A post-Valentine's Day reminder that reality isn't all love and chocolates.

Thursday, February 12, 2015

People v. Wade (Cal. Ct. App. - Feb. 10, 2015)

The California courts are closed because it's Lincoln's birthday, and the Ninth Circuit (again) has not published anything today.  So it's another lazy California day.  (Thankfully:  It's a sunny 80+ degrees and sunny here in San Diego, and is one of those February days that makes me thankful to be alive -- and in SoCal.)

But just because the California judiciary may be (officially) taking a break doesn't mean I can't tell them that they should take on some extra work.  Which I'll now do:

The California Supreme Court should grant review of this opinion.

I'm not saying that because I believe Justice Kriegler's decision to be necessarily wrong and/or pernicious.  It's just that it's in irreconcilable conflict with an earlier Court of Appeal decision, and the resulting split is jurisprudentially untenable.

Justice Kriegler holds that you illegally carry a firearm "on your person" if the gun is in your backpack.  Hence prison time.  But less than two years ago, Justice Mallano (in an unanimous opinion) held that you're not illegally carrying a knife "on your person" if it's in your backpack.

One of those two opinions, in my view, is wrong.  It's the exact same statutory language.  They're both weapons.  It's inconceivable that the Legislature intended that you be allowed to keep a knife in your backpack but not a gun because the former isn't "on your person" but the latter is.

Most importantly, we need to know what we're allowed to keep in our backpacks.  Whether we spent years in prison shouldn't depend upon what panel we happen to draw in the Court of Appeal or which of these two competing decisions the trial court finds most persuasive.

So the California Supreme Court should take the case up and settle the question.

P.S. - The entire dispute also brought a smile to my face because it reminded me of something my father used to say.  He was fond of retelling the same stories over and over again.  (Whether he knew he was retelling the story to the same audience is an unsettled question.)  One of the classic stories he would often recount related to how law often remained unchanged in Virginia, the state in which he lived and practiced law.  He would often note that the law about concealed weapons in Virginia "still comes from a case about whether a gun in a saddlebag counts."  He always thought that was funny.  He was also right:  there was indeed a case in 1909 about whether a pistol in a saddlebag counted as being carried "about his person" under the statute.  An issue similar to the one the California Court of Appeal is now split.

I thought about my father's oft-retold story when I saw that one of the decisions cited by Justice Kriegler was from Virginia, and related to whether a pistol in a handbag counted as being "on one's person" notwithstanding the "saddlebag rule" established by the Virginia Supreme Court long ago.

The more things change . . . .

Wednesday, February 11, 2015

Eddie E. v. Superior Court (Cal. Ct. App. - Feb. 11, 2015)

The trial court repeatedly refuses to make findings that might allow a child to stay in the United States, thinking that he'd be better served if he made "a fresh start" by being deported to Juarez, Mexico.  The Court of Appeal, by contrast, thinks that the minor has turned his life around, including graduating from high school with a 4.0 grade point average, and has a contrary view of the merits.

Needless to say, the trial court loses, and the Court of Appeal wins.

In Re Art T. (Cal. Ct. App. - Feb. 11, 2015)

There are some things I don't know.  Like what it says about our species that we live in a world in which 13-year old children join gangs and kill people in cold blood.  Seriously:  I don't know what to make of this.

But there are some (more limited) things that I do know.  Like when a 13-year old boy being interrogated by the police says "Could I have an attorney?", that's a request for counsel under Miranda.

The Court of Appeal understands that as well.

Tuesday, February 10, 2015

Wilson v. Southern California Edison (Cal. Ct. App. - Feb. 9, 2015)

When I read the first paragraph of this opinion, and noticed that the jury had awarded the plaintiff over $4 million -- including $3 million in punitive damages -- for "allowing uncontrolled stray electrical currents to enter the home" from an electrical substation next door, I thought that this was one of your classic juries who believed that electromagnetic radiation from electrical power lines causes cancer.  A controversial theory, to say that least.

But the case is actually not about something controversial.  There are, in fact, stray electrical currents that can -- and often do -- enter homes from nearby substations.  Currents that can at a minimum be extraordinarily annoying, and potentially worse.

When you read this opinion -- which ends up remanding the case for a new trial (and reversing the award of punitive damages) -- my bet is that you'll think twice before buying a home that has an electrical substation nearby.

And if you'd have thought twice about it already, this one will make you think thrice.

Corbello v. Valli (9th Cir. - Feb. 10, 2015)

"Jersey Boys" = Massive Litigation.

Monday, February 09, 2015

Come Back, Ninth Circuit (9th Cir. - Feb. 2015)

Paul Simon once wrote (and sang):  "Where have you gone, Joe DiMaggio?"  The same might be said for the Ninth Circuit in February 2015.

In the six business days of this month, the Ninth Circuit has written a sum total of one -- count it, one -- published opinion.  Whereas the mass of unpublished opinions continues apace:  50+ and counting.

At this rate, February could be the slowest month in the history of the Ninth Circuit.  Plus don't forget it's only 28 days, and we've got President's Day coming up.

P.S. - Apparently the line about Joe DiMaggio is subject to competing interpretations.  To be clear:  I mean "Where are you?" not "Why do you now stink?"

People v. Cisneros (Cal. Ct. App. - Feb. 9, 2015)

I don't like it when either the defense attorney or the prosecutor screws up.  It's the latter that happens here.

It's a Batson claim that you don't see too often:  a claim that one side used its peremptory challenges to exclude a particular gender; namely, men.  The prosecutor did indeed exclude a lot of men.  When challenged, she came up with a variety of reasons for doing so.  All of which the trial court accepted.

Except for one problem.

With respect to two jurors, all that the prosecutor said was that she preferred the next person in the box.

You can't do that.

By definition, whenever you exclude a juror, you obviously prefer the next person in line.  So that can't count as a sufficient justification.  You've got to give an actual reason why you think that this particular juror is bad for you.  Or at least worse for you.

The prosecutor didn't do that here.  Hence the defendant gets a retrial.

It's not a mistake one should make.  Especially since the defense counsel expressly articulated this exact objection.  At a minimum, having been advised that you've got to do more, the prosecutor should have done so.  She didn't.

At least after this published opinion, hopefully it's not a mistake that will be oft repeated.

Andrew V. v. Superior Court (Cal. Ct. App. - Feb. 9, 2015)

I'm glad the Court of Appeal decided to (belatedly) publish this opinion.  It's important.  I'm also impressed how quickly it resolved the writ petition.  For good reason.

Mother files a motion to move Children to Washington, and Father opposes it.  At the hearing, however, the child custody investigator isn't available to testify, and Father's counsel is also sick, so isn't there.  As a result, the hearing gets continued.

But the trial court nonetheless grants a "temporary" move-away order that lets Mother move Children to Washington in the interim.  Without a full hearing.  Without Father's counsel.  And without staying that order for 30 days as required by California law.

The Court of Appeal grants a peremptory writ and reverses.  You can't do that.

It's also done extraordinarily quickly.  The trial court order was on January 14, 2015.  Father filed his writ on January 20.  The Court of Appeal issues a Palma notice the very same day.  Three days later, the Court of Appeal issues its opinion reversing.  Publishing that previously-unpublished opinion earlier today.

Well done.

The only thing I'll add, however, is that the laudatory speed of the Court of Appeal in reversing the trial court's move-away order was far from matched by the speed of the trial court in adjudicating this order.  Mother got a promotion and was transferred to Washington in early 2014.  She filed her motion for a move-away order in July 2014.  A child custody investigation was ordered in August.  Which took until December 2014 to complete.  Then a hearing is scheduled for January 2015.  Which (as described above) doesn't fully resolve the issue, so the trial court continues the hearing until March 2015.

That's nearly a full year after Mother asks for the move-away order.  So she and the children are forced to stay in California the whole time.

It's clearly important to get these things right.  But it's also important to get these things decided quickly.  For the welfare of the parents as well as the children.  People shouldn't be in limbo for eons.  When (as appears here) there's a seemingly legitimate reason for a move, the court should act as quickly as it can.  Because a delay isn't in anyone's interest.

And if that means appointing more family law judges, or more custody investigators, or getting them (and/or the parties) to do their work a bit faster, so be it.

Good job by a busy Court of Appeal.  Let's hope this practice gets replicated by our busy trial courts.

Friday, February 06, 2015

Ram v. OneWest Bank (Cal. Ct. App. - Feb. 6, 2015)

Here's yet another "wrongful foreclosure" case.  Like so many, many others filed in the wake of the Great Recession.

Its fate is the same as nearly all of them.  Dismissed by the trial court.  Affirmed by the Court of Appeal.

The only wrinkle in this one is that the panel disagrees on precisely why plaintiffs lose.  But everyone agrees they do, indeed, lose.

I'm not exactly sure who's prosecuting these appeals, or the underlying business model, when (as here) the plaintiffs are represented by counsel.  Sure, you can get money from the plaintiffs themselves, but presumably not a lot, since they're people who can't even pay their mortgages.  Of course you can alternatively take a piece of the pie, but as I said, there's pretty much never -- never ever -- any actual pie, so I'm not sure how that works as well.

Maybe you're just a true believer.  Surely there are indeed things about the whole "robosigning" process, and other unique aspects of the whole MERS arrangement, that might make you perceive that things are sleazy and hence that you might potentially prevail at trial.

But I think the judicial attitude in pretty much every single one of these cases (including this one) is basically "Hey, you didn't pay your mortgage, and you lost your home.  That's the way things things work.  You can't file a lawsuit based on 'ticky-tack' violations if you didn't actually pay."

Whether they say so or not.

Thursday, February 05, 2015

People v. Rodriguez (Cal. Ct. App. - Feb. 5, 2015)

Read this opinion (and dissent), which involves a three-strike life sentence for having five tiny bindles of heroin for a guy who's now 59 years old.  He's trying to get resentenced under Prop. 36, and he's eligible to apply because he didn't commit any disqualifying offense.

The trial court, however, refuses to grant him relief.  It thinks he's still "dangerous" because he might commit future crimes upon release.  Even though even the state says that Mr. Rodriguez has been a "model prisoner," it -- and the trial court -- are worried that he might continue to engage in things like petty theft if he's released.  The Court of Appeal affirms.

I'll let the competing opinions speak for themselves.  I'll simply add that I'm fairly confident that the vast majority of the people who voted for Prop. 36 intended that prisoners like Mr. Rodriguez should not be bound to their mandatory 25-to-life sentences.

But maybe I'm just saying that because Mr. Rodriguez's history compares favorably to pretty much every single prisoner in The Shawshank Redemption.

Wednesday, February 04, 2015

National Union Fire. Ins. Co. v. Tokio Marine (Cal. Ct. App. - Feb. 4, 2015)

It's hard to write something timely about Ninth Circuit and California appellate decisions on days like today; e.g., when the Ninth Circuit publishes nothing in February thus far (despite 30+ unpublished opinions) and when the Court of Appeal only publishes a single case (thus far) today.  Slim pickings.

Rather than discussing the merits of today's Court of Appeal opinion by Judge Goodman (sitting by designation from L.A.), I thought I'd just mention that I was struck by the caption.  The title of the case is National Union Fire Ins. Co. v. Tokio Marine.  A fight between two insurance companies.

What's neat about that is that I happen to recall that there's a famous Second Circuit case with that exact same name -- a leading appellate case about reformation -- way back in 1937.

So these two entities (or their predecessors) have literally been fighting since before World War II.

Different case, of course.  But a memorable name.

Tuesday, February 03, 2015

People v. Alexander (Cal. Ct. App. - Jan. 16, 2015)

There's only one published opinion today.  It's about whether the California Department of Resources Recycling and Recovery has the authority to enforce the Architectural Paint Recovery Program.

So ahead and read that one if you'd like.  Or, alternatively, you can watch paint dry.

For a slightly more exciting case, you could instead read an opinion from a couple of weeks ago that amply demonstrates that clients are sometimes their own worst enemy.

Monday, February 02, 2015

Ashlan Park Center v. Crow (Cal. Ct. App. - Feb. 2, 2015)

If this case had come out any other way, I'd have fallen on the floor in disbelief.

The Court of Appeal holds that when a corporation (or corporations) own a shopping center and the economy turns south, that does not constitute "reasonable cause and circumstances beyond [their] control" for not timely paying property taxes.  Hence there's no waiver of statutory penalties.


This lawsuit had no probability of success from the get-go.