Thursday, April 30, 2015

People v. Jackio (Cal. Ct. App. - April 30, 2015)

When you read the published appellate cases for a quarter century or so, you tend to have a not very positive outlook towards guns.  Pretty much every situation you read about that involves a gun ends up badly.  People murdered, people pulling out weapons unnecessarily, fistfights escalating to death, etc.

So this case merits mention if only because it's an exception.

It's not that everyone ends up wonderfully.  People still get shot and seriously injured.  But it's nonetheless a pretty good poster child for the "We Need Guns For Self-Defense" crowd:

"Between 2:00 and 3:00 a.m., [Antonio] Branch, who had been out that night, approached the residence in her car with her son in the backseat. She opened the garage door with a remote control from her car and drove into the garage. In the garage, Branch closed the garage door with the remote control and went around her car to get her son out of the backseat. Defendant and Deary-Smith approached her, pointed guns at her, and told her to open the door leading into the house. One of the men, probably Deary-Smith, hit Branch in the head with his gun, opening up a wound that required five staples to close.

[Martez] Laster, who was inside the house, heard the commotion in the garage and grabbed his .40-caliber handgun. He went to the door that connects the garage to the interior of the house, unlocked it, and began to open it. As he was opening the door, he was rushed by defendant and Deary-Smith. Laster took a couple steps back and was shot in the side, so he returned fire. Defendant and Deary-Smith retreated into the garage.

Both defendant and Deary-Smith had been hit by gunfire from Laster. DearySmith was hit in the head and fell to the floor of the garage, and defendant, who was hit in the leg, escaped out the side door of the garage. Meanwhile, Branch got back into her car, put the car in reverse, and backed up through the closed garage door.

A neighbor saw defendant flee. Defendant limped along, leaving a trail of blood and dragging himself to a car. He got into the car and drove away. A subsequent medical examination revealed that defendant was hit twice in the leg, with one of the bullets breaking his femur. Defendant had gunshot residue on his hands and pants. And the DNA in the trail of blood from the house to the car matched defendant’s DNA profile. Also along the trail of blood between the house and the car, defendant dropped a ninemillimeter handgun.

When law enforcement arrived at the house, Deary-Smith was still on the floor of the garage. He had zip ties in his pocket, and a loaded .45-caliber semiautomatic handgun was on the ground next to his head."

There's no explanation in the opinion (and perhaps none anywhere) as to why the perpetrators here targeted this particular house for a home invasion, or why one of its occupants had a gun.  But from the perspective of the occupants -- and likely society -- it was good they did.  Ends up with the two perpetrators both disabled and captured and a home invasion robbery thwarted.

Could have ended up much worse.  For everyone.

People v. Kopatz (Cal. Supreme Ct. - April 30, 2015)

This is an otherwise routine death penalty case in the California Supreme Court.  Unanimously affirmed.  Takes over 14 years to decide.  Ho-hum.

It's nonetheless a little unusual in a couple of ways.  First, most defendants sentenced to death are fairly consistently bad guys.  This one's not.  As far as I can tell, this is his first criminal offense.

Second, the evidence against most defendants sentenced to death is fairly overwhelming.  Which is not surprising.  Most criminals aren't that smart.  And even smart ones, in the modern forensics era, leave lots of clues.  Plus, in death penalty cases, the prosecution generally leaves no stone unturned.

But, here, the evidence that Kim Kopatz strangled his wife and daughter is incredibly thin.  Sure, he behaved strangely the day of the murder (though maybe he's just a strange guy).  And had motive as well as opportunity -- the victims had life insurance, and Mr. Kopatz was in serious debt.

But there's an incredibly slim amount of hard evidence that he actually committed the crimes.  Yes, he definitely could have done it.  Probably did.


Which is enough to sentence him to death.

If there are an infinite number of universes, I'm confident that in several of them, Mr. Kopatz isn't guilty, and that some other random person killed his wife and daughter, and yet he's executed for it.

Again, if I'm a betting man, I'm putting my money on Mr. Kopatz as the killer.  Even at fairly high odds.

But it definitely ain't rock solid.

Wednesday, April 29, 2015

Cholakian & Assocs. v. Superior Court (Cal. Ct. App. - April 29, 2015)

This opinion is right.  Although the underlying doctrinal predicate is silly.

The Court of Appeal grants a peremptory writ of mandate, so it involves a mistake that's worth knowing about.  The question is this:  When plaintiff files in the wrong venue in a multiparty case, and defendants move to transfer venue, can the trial court keep the lawsuit in the current forum "for the convenience of witnesses and parties" if one of the defendants has already filed an answer, or must all of them have filed an answer to allow preservation of the current venue?

The Court of Appeal says it's the latter.  Which is, in my view, the correct interpretation of the statute.  For all the reasons Justice Duarte articulates.

That said, to me, the underlying rule makes no sense.

The California rule is apparently that you've got to transfer venue if venue's improper so long as no one has yet filed an answer; however, once the defendant answers, the improper venue somehow can become "proper," or at least the case can stay there.  I prefer the federal rule, which says otherwise; a case can't be transferred to (or retained in) an improper venue as long as the defendant objects.  That's a rule that most preserves the valuable objectives protected by the venue rules.

But even if you didn't prefer the federal rule, why would you make the disposition of the transfer motion depend on the happenstance of whether the defendant has filed an answer?  Defendant says he doesn't want the case here and wants to preserve his rights.  Why does it matter whether he's gone through the formality of also filing an answer?

California's answer -- reflected in Justice Duarte's opinion -- is that only once you've filed an answer can the trial court "really" determine where the convenience of witnesses exists.  So before defendant files an answer, we can't tell what place is more convenient, since we don't really know what the fight is about, and hence are compelled to transfer the case to a proper forum, but after an answer is filed, we suddenly can tell what place is more convenient.

This isn't something that Justice Duarte has made up.  It preexists today's opinion.  Though it's the doctrinal theory that Justice Duarte (understandably) follows in coming to this morning's conclusion.

This doctrinal underpinning seems to me entirely bunk.

You can't figure out what place is "really" most convenient before an answer?!  Nonsense.  Even before an answer, the parties will file competing declarations -- as they do in federal court -- that articulate the central disputes and where the parties and witnesses exist.  You simply evaluate those submissions and apply the law.  Straightforward.  You don't need an answer for that.  You just need the arguments and evidence of the parties.

Similarly, what's so magical about the answer?  We all know what it's going to say:  Deny, Deny, Deny, etc.  Especially in California, which typically allows general denials, so it's essentially totally meaningless.  The answer doesn't truly give you any information at all.  Certainly not about what the "real" disputes are between the parties.  And in those rare -- and I mean rare -- cases in which the content of the answer actually matters (e.g., an admission to liability), you're assuredly going to get that in the venue declarations anyway.

In short, I understand why we still have answers.  But to pretend that they actually impart information -- much less information that's "critical" to deciding a venue transfer motion -- is absurd.

I'm hoping that someone eventually takes a look at this.  It's not that it's a critical issue; we can deal with nonsensical rules in this area and still live tolerable lives.

But it's nonetheless embarrassing.  And worth a change.

P.S. - Justice Duarte's opinion repeatedly refers to it as a "preemptory writ of mandate".  That's not unusual; I count 91 cases in the Court of Appeal -- and five in the California Supreme Court (though none since 1995) -- using this same terminology.  But I'm pretty sure (having now consulted Section 1087) that it's actually a "peremptory" writ of mandate.  Which also seems the dominant usage;  863 times in the California Supreme Court, and 6,331 times in the Court of Appeal.

People v. Delacerda (Cal. Ct. App. - April 29, 2015)

It's an ugly story.  Made even uglier by the fact that the perpetrator was a sheriff with L.A. County:

"The victim, Emily R., testified she and defendant, a deputy sheriff, began dating in the summer of 2009. At first, their relationship was stable, but after awhile defendant became very possessive. Every time Emily tried to do something on her own, defendant became depressed, told her he could not live without her, and wanted to commit suicide.

In the fall of 2009, Emily told defendant she wanted to end their relationship. He continued to call and send her text messages, in which he threatened to kill himself. Emily was worried about defendant, and she remained friends with him. They had sexual relations twice in November and twice in December 2009.

In April 2010, Emily spent the night with an ex-boyfriend. About 4:00 a.m., Emily awakened to her cell phone vibrating. There were several text and voicemail messages from defendant asking where she was. Emily sent him a text message saying she was fine and would call him in the morning.

Defendant responded that she needed to call him immediately. She did call, but she refused to tell him where she was. Defendant said, 'I need to know where you are right now. Why aren‘t you telling me the truth right now?' She replied, 'We are not together anymore. Doesn‘t matter where I am. It‘s none of your business. You need to stop this. You need to knock it off. You need to stop.'

The next afternoon, Emily returned to her apartment. She was concerned defendant might be there, so she drove around looking for his car. Not seeing it, she parked and went in. When she unlocked her door, she saw defendant lying on the floor with a blood stain on his shirt, petting her cat.

Emily asked defendant, 'What are you doing here?‖ He told her he wanted to talk. Emily responded, 'I don‘t want you here. You need to leave.' Defendant said he was upset and depressed. Defendant accused Emily of cheating on him. Emily reminded him they were no longer dating. She told him her whereabouts were none of his business, and he should stop trying to keep track of her.

After Emily told him several times to leave, he said, Not yet,' and added, 'I wanted you to be here to see this.' He took a revolver from his pocket, put one bullet in it, and stood between her and the front door. Emily walked towards the front door, and asked, 'What are you doing?' Defendant blocked the door and said, 'No. I‘m not going to hurt you' and 'I just want to talk.'

Defendant removed the bullet from the gun, placed it on a table by the front door and said, 'I want to read your e-mails.' Emily asked, 'If I let you read my e-mails will you leave me alone forever?' He said, 'I promise. I won‘t bother you again.'

Emily went in the bathroom and locked the door. Defendant banged on the door and asked her what she was doing. When Emily came out, defendant was standing by the bathroom door. He said, 'Let‘s read your e-mails. Let‘s do this.' They both went into her bedroom and sat down on the bed.

Emily opened her laptop computer. Defendant ordered her to show him her e-mails. Emily threw the laptop at him and tried to run away. When she was halfway across the apartment, he tackled her and they both fell to the floor.

Emily tried to scream but defendant put his hands over her mouth and nose so it was difficult for her to breathe. Defendant picked Emily up, and marched her back to the bedroom. He put the laptop on her lap and said, 'Let‘s keep looking. I want to see.' He pointed to the e-mails he wanted Emily to open.

As defendant was reading one of them, Emily threw the computer at him again and ran toward the front door. Defendant again tackled her, put his hands over her nose and mouth, dragged her back to the bedroom, and put her back on the bed. This time, defendant held onto the computer, and told Emily to sit down and shut up.

While defendant was reading her e-mails, Emily ran for a third time. She was near the front door when defendant tackled her to the ground once more. Defendant rolled her onto her back. Emily screamed. Defendant got on top of her. He put his hands over her mouth, and said, 'Shut the fuck up' and 'Okay, I‘ve got to do this.'

Defendant grabbed the gun with his right hand while holding Emily down with his left. He opened the cylinder, put the bullet back in the gun, snapped it shut, and put the gun in his mouth. Emily begged defendant not to do anything. Defendant put his hands over her mouth again and pulled the trigger. The gun clicked but nothing happened. Emily screamed."

There's more and more.  Ending up with the victim escaping from the apartment and getting into her car, the defendant jumping on its hood as it was moving, etc.  Suffice it to say that these additional events don't make the story any less ugly (or sad).

P.S. - For what it's worth, here's the mug shot of the defendant.  Who's looking more like a perp than a sheriff:

Tuesday, April 28, 2015

Monsivaiz v. LA County Civil Svc Comm'n (Cal. Ct. App. - April 28, 2015)

I get the theory behind today's Court of Appeal opinion.  But I wonder if it's just.

Petitioner said that he was wrongfully fired from his civil service position, but he then died while his writ petition was pending in the superior court.  So the trial court dismissed his petition, on the theory that since petitioner was now dead, he couldn't be restored to his former position anyway, so it's all moot at this point.

Okay.  I get it.

But petitioner's got a claim for back wages.  Shouldn't he be allowed to recover those if, in fact, he was wrongfully fired from his job?

Justice Grimes says, nope, she shouldn't.  In a holding that may well be technically correct.  To overly simplify the argument, the theory is that since the relevant statutes only authorize writs by wrongfully discharged employees, but the petitioner here is no longer an employee since he's now dead, there's nothing a court can do.  Relief isn't authorized.

This theory is sound as far as it goes.  But, again, I wonder if it's just.  Or whether it's a relic of an outdated and inequitable era that we should strive to put behind us.

We used to abate all sorts of things under the common law.  You died and your lawsuit went away; tough luck for you.  But in the past century, most places (including California) gradually whittled away at this inequitable result.  There are still vestiges of this view in the modern era; for example, the rule that you can't recover for pain and suffering once you die.  But for the most part, the theory of abatement based upon death has been replaced by a superior regime.

The change wasn't sudden.  It transpired over a series of decades.  And it replaced a system that was consistent.  Coherent.  A unified whole.  That ancien regime made internal sense at the time, and was supported by well-reasoned and coherent authorities.

Just like the Court of Appeal's opinion here.

I would have liked to read Justice Grimes' take on that evolution.  Today's opinion doesn't talk at all about abatement in normal cases, much less its development over time.  It doesn't talk about the equity of the result obtained here or the downsides of its holding that a petitioner can be deprived of all relief -- including the back pay to which he's entitled -- based solely on the happenstance of his death.

California saw similar results in regular cases long ago, which motivated us to push against this system and ultimately change it.

I wonder whether the Court of Appeal thinks that a similar result should happen here.  Or whether it's happy with the equity of the result it has reached.

Luna v. Kernan (9th Cir. - April 28, 2015)

I'm usually more than happy to call out attorneys who commit gross misconduct.  If nothing else, it's a good warning to those who might otherwise be to make similar mistakes.  Plus, in criminal cases, it sometimes highlights the sorry state of representation in far too many of these matters.

So imagine my thoughts when I read Judge Watford's comment that, in this federal habeas case, "the magistrate judge assigned to Luna’s case determined that, given the complexity of the legal issues involved, the interests of justice required appointment of counsel. [Ed: Habeas cases don't entitle the petitioner to appointed counsel.] Ordinarily, that’s a good thing for someone in Luna’s shoes. 'Sadly' though, as the magistrate judge later remarked, in this case Luna 'may have been better off without counsel.'”

Ouch.  It's pretty harsh to say that appointed counsel was worse than the lay petitioner himself spouting out legal pleadings filed from prison.

Yet it also seems accurate.  The petitioner here seemed to be doing a fairly decent job of navigating the complex procedural morass that is modern federal/state habeas.  Things only got screwed up once the attorney got involved.  And screwed up they did.  Royally.  Resulting in the filing of a habeas petition more than six years after the relevant federal deadline had passed.

I'll let you read the entirety of today's opinion by Judge Watford's for details.  Suffice it to say that when Judge Watford holds that these were no "garden variety" attorney errors -- which do not justify equitable tolling of the limitations period -- but were instead "egregious professional misconduct" (which might), there's more than ample support for such a conclusion.

So, normally, I'd be inclined not only to mention the case, but also the relevant attorney, Joseph Wiseman.  Someone who Judge Watford also repeatedly identifies by name in the opinion.

And I will.  (And just did.)

Yet, to be honest, while Mr. Wiseman clearly did wrong here, any notion of retribution seems to me inappropriate here.  Indeed, in truth, I feel a little bad for him.

Maybe my predicate assumptions in this regard are factually inaccurate, but I feel a little bad for Mr. Wiseman because (1) he seems to have tried to do the right thing, but was simply out of it with regard to various complicated procedural habeas issues, and (2) he either wasn't getting paid at all (because it was a habeas case) or was only getting paid a pittance (e.g., $90/hour).  So there's at least a nontrivial chance that Mr. Wiseman took on this case to do a "solid" for the magistrate judge (rather than to make bank), tried -- as best as I can tell from the letters he sent the client, etc. -- to do the right thing, but just was sufficiently confused or inexperienced that he made some (admittedly huge) procedural mistakes.

He's culpable for that, of course.  He shouldn't have done it.  And we might potentially want to give the client some relief from the resulting procedural bar.

But I've seen worse.  Much worse.  By lawyers who don't seem to care in the slightest.  As opposed to lawyers, like Mr. Wiseman here, who made mistakes, eventually seemed to realize them, and then  "request[ed] that the court appoint new counsel for Luna, candidly acknowledging that Luna might wish to seek equitable tolling on the basis of Wiseman’s handling of the case."

Does Mr. Wiseman need to brush up on habeas procedure?  Definitely.  Does it look like he could use a serious course in law firm management so he doesn't leave petitions hanging for months at a time? No doubt.  I hope, and expect, that after this experience, Mr. Wiseman will get on the stick.

But would I want to see Mr. Wiseman disbarred?  No way.  He made mistakes.  He'll pay for 'em.  Reputationally and otherwise.

But it is what it is.  I like that Judge Watford's opinion makes clear both the mistakes that were made here and that they're definitely not okay.  As well as might justify relief for the client.

But I'm okay with that largely being the end of the matter.

No one's perfect.  Sometimes not even close.

Monday, April 27, 2015

Seismic Reservoir 2012 v. Paulsson (9th Cir. - April 27, 2015)

The Ninth Circuit is in the West.  With that geography comes a certain familiarity with various jurisdictions.  Even lesser-known, far-flung places like Guam, the CMNI, and Montana.  (Just kidding, Montana.)

One jurisdiction, however, that I haven't read much about in the Ninth Circuit is central to this morning's opinion, which begins with:

"Bj√∂rn Paulsson appeals from the dismissal of his counterclaim seeking damages under § 242 of the Alberta Business Corporations Act for breach of fiduciary duties owed by directors of an Alberta company. The district court dismissed Paulsson’s claim under Federal Rule of Civil Procedure 12(b)(1), concluding it did not have subject matter jurisdiction to issue a remedy because the Alberta Act vested exclusive jurisdiction in the Court of the Queen’s Bench of Alberta."

Alberta, eh?

At the risk of revealing the fact that I'm a prototypically ignorant American, I'll concede that I had to look up to make sure that I knew were Alberta was.

See if you're as lame as I am:  Do you know whether Alberta touches any states in the Ninth Circuit?

Here's your answer.

As for the merits of the case, to the surprise of few, the Ninth Circuit agrees with the district court that “the right created by § 242 of the [Alberta Business Corporations Act] . . . can be enforced only in the designated tribunal—the Court of Queen’s Bench of Alberta,” not the Central District of California.

So no sunny LA. beaches for the parties.  Back to the frozen tundra of Calgary.

People v. Smith (Cal. Supreme Ct. - April 27, 2015)

Everything about this is depressing.

Defendant has an incredibly sad -- indeed, at times, monstrous -- childhood.  You can see how a kid raised in that environment might well go bad.

But the murder he commits is also incredibly heinous.  Which is why there's an entirely appropriate special circumstance of torture.

The California Supreme Court correctly reverses the death sentence.  Unanimously.

But given the defendant's conduct in prison, particularly alongside the circumstances of the murder, I think there's more than a decent chance that he'll get resentenced to death on remand.

But even the first round took 17 years.  A round that doesn't include any state or federal habeas proceedings.

Is it really worth it to try again?  Just to have him die in prison long before the sentence gets carried out?

The murder was a terrible one.  Defendant is a guy a large majority of people would want to kill.

But the practical reality is that it ain't gonna happen.

Friday, April 24, 2015

Sefton v. Sefton (Cal. Ct. App. - April 24, 2015)

I never took Trusts & Estates.  And because I never studied for the bar exam, I never actually learned the stuff either.

But I've picked up bits and pieces of this area over the subsequent decades by reading the California appellate cases and through various work.  The same may be true for other people as well.

I nonetheless concede that the following hypothetical would have completely stumped me until today:

Grandfather writes a will that creates a testamentary trust in favor of his son ("Father").  The trust says that upon Father's death, the trust terminates and its assets get distributed.  The trust also says that Father gets a big say as to how those assets get distributed, stating that "[t]hree quarters (3/4) [of the Trust estate] shall be distributed to [Father's] then living issue as [Father] shall by his Last Will and Testament appoint, and in default of appointment, to his then living issue on the principle of representation."

My nonlegal mind reads that as saying that the bulk of the trust goes to whomever Father lists in his will, and if there's no such will, then an equal share goes to each of Father's kids (or at least that's the way it works if they're all still alive).

Okay so far?

So, under this hypo, Father then has three kids:  Son 1, Son 2, and Daughter.  Son 1 doesn't have any kids, Son 2 has three kids, and Daughter has one kid.

Father writes a will that says that (1) Son 2 and his kids get 2/3 of the Trust, (2) Daughter and her kid get 1/3 of the Trust, and (3) Son 1 gets $25,000 (not from the Trust, but from other assets).

Don't be thinking this is generous to Son 1.  Yeah, he gets $25,000.  But Son 2 and his kids got $37.8 million, and Daughter and her kid got almost $18.8 million.

Apparently what Son 1 got is called a "testamentary snub".  In common parlance, a "F**k You."

Son 1 sues.  (Or, more accurately, files a petition in probate.)

What does Son 1 receive?

(A)  Nothing.
(B) $25,000.
(C) $565,350.
(D) $18.8 million.
(E) It depends on when Grandfather's will was written.


Were I to have attempted to answer this question yesterday, my answer would have been a total guess.

The trial court thought that the answer was (B).  But then the Court of Appeal reversed and remanded.  At which point the trial court, following the Court of Appeal's instructions, thought that the answer was (C).  But the Court of Appeal reversed again.  Admitting that its prior instructions were -- and this is a nice way of putting it -- "ambiguous".  Holding that the right answer in the present case is (D).

Though, truthfully, the correct answer to my hypothetical is (E).  The common law says -- at least according to today's opinion -- that the answer is (D), since Father was empowered to split the Trust as he saw fit but was not capable of excluding someone entirely, and since that's what he did, Son 1 gets the default apportionment, one-third.  But in 1970, California passed a statute that changed the law, so that the answer would now be (B).  That statute, however, postdated Grandfather's will, so the answer remains (D).

The theory, I take it, is that the law presumes that Grandfather loved -- or thought he'd love -- all his grandkids, but wanted Father to be able to tinker with the allocations (based on need, etc.) if Father felt like it, but didn't want Father to be able to totally screw one of the grandkids.  So even though Father here didn't like (or want to give money to) the childless Son 1, Son 1 nonetheless gets his nearly $20 million.

So now you know.  As do I.  At least if I've gotten the facts and law right.

As my daughter would say:  "Rich people's problems."  But a problem for courts and lawyers as well.

A problem that it took multiple rounds in the trial court, and two in the Court of Appeal, to solve.

Thursday, April 23, 2015

Stennett v. Britel (Cal. Ct. App. - April 23, 2015)

Anime Britel was a world-class triathelete.  In 1999, he met Jackie Stennett while they were both at the Harvard Business School, and they had a romantic relationship.  Jackie got pregnant.

Fast forward to 2011.  Mr. Britel was riding his bike when he was killed in by a drunk driver who was texting on her phone.  He was 41.

He also had no will.

Under the usual California intestacy laws, Mr. Britel's mother -- his only surviving relative -- would get everything.  But Ms. Stennett files a petition that claims that Mr. Britel's estate should go to her daughter, A.S.

A.S. is, indeed, Mr. Britel's biological daughter as well.  She was born as a result of Mr. Britel and Ms. Stennett's relationship in 1999.

California's intestacy rules provide that A.S. qualifies as Mr. Britel's heir so long as he "openly held out the child as his own."  See whether you think the following facts make such a case:

"In the fall of 1999, Amine and Jackie met at Harvard Business School and developed a romantic relationship. In the early summer of 2000, they graduated. Jackie went to work in Atlanta, Georgia, while Amine moved to Newport Beach, California.

In August 2000, Jackie phoned Amine and told him she was pregnant. The next day, Amine sent Jackie an e-mail message saying he was “devastated,” he would never be able to share the news with his parents, and that having a child out of wedlock was contrary to his Muslim religion and his culture and would bring him “a total shame [he would] have to bear for the rest of [his] life.” Amine continued: “Please understand that I do love you but I am just not ready to be a father right now. I want us to have a child through a legitimate marriage and not outside of wedlock. We need to live together, learn about each other, and then make a committment [sic] for life. I perceive marriage as a very serious engagement. I was devastated for the past two years as a result of a bad marriage. In all fairness, I believe I should be a part of this decision. [¶] It is important for us to meet to discuss this issue as soon as possible and find a suitable arrangement for both of us.”

Later that month or possibly in early September, Jackie visited Amine in California for three or four days. She had initially planned to stay around a week, but the trip was cut short and she returned to Atlanta. Within the next few days, Amine and Jackie spoke by phone between five to 10 times. The end result was that Amine told Jackie not to contact him again and that he did not want her or the baby to be in touch with him or his family.

Amine told his best friend, Youssef Choukri, that Jackie said she was pregnant with his baby, and that his having a child out of wedlock would bring shame to his family (who were highly regarded in Morocco) and might possibly cause Amine to be disinherited. Amine initially told Choukri he was not sure whether Jackie was really pregnant, but that he had told Jackie that if she was indeed pregnant, he would like her to have an abortion.

In late 2000 or early 2001, Amine told Choukri that Jackie had had an abortion. Amine and Choukri never discussed the matter again.

At trial, Jackie testified she never told Amine she had had an abortion.  [The trial court found that Jackie's testimony was "not convincing".]

A.S. was born to Jackie in February 2001. Amine is not listed as the father on A.S.’s birth certificate. Prior to Amine’s death, Jackie never sought a paternity order to determine whether Amine was A.S.’s father. Amine never provided any financial support to A.S., never met her, and never communicated with her.

For many years, Jackie comported with Amine’s request that she not contact him. Then, in November 2006, Jackie sent Amine an e-mail message, which stated in part, “Per your last request I have kept my distance from you for the past six years.” Jackie’s e-mail message informed Amine that A.S. wanted a relationship with him.

Amine did not respond to Jackie’s e-mail message, so Jackie phoned him. In the phone call, Jackie told Amine that A.S. asked about him and wanted him in her life. Amine was “terse and cold,” asked Jackie not to phone him again, and made it clear he wanted nothing to do with Jackie or A.S. This phone call and Jackie’s e-mail message were the only communications between Jackie and Amine from the time A.S. was born until Amine’s death.

Amine was close with his family members, but never told them he had a child."

Those are the facts.  Does you think they qualify as Mr. Britel holding A.S. out as his child?

I didn't think so.  It's not even close.

The Court of Appeal agrees.

Now, I must say, there exists some precedent for an opposite conclusion.  One might hold -- as perhaps a case or two in California have done in dicta -- that "openly" holding out a child as your own simply means admitting paternity.  To anyone.  In which case a concession to the mother might even qualify.

But I think the Court of Appeal is right.  That's not what the Legislature intended.  Or said.

I will also say that I think that Ms. Stennett does have a decent argument on an ancillary point.  Mr. Britel had a child.  Whether he wanted one or not.  As a (biological) father, he's bound to support that child (if he can).  So he'd normally be liable for child support.  Paternity creates that obligation.

But -- in something I didn't know until today (not being a family law practitioner) -- California says that you can only require child support if you file while the parent is still living.  Ms. Stennett didn't seek a declaration of paternity until Mr. Britel was dead.  So under California law, the kid doesn't get anything.  No support.  No inheritance.  Nothing.

Ms. Stennett says that's irrational.  To be honest, I kinda agree.  Why does getting killed relieve you of the obligation to support your child?

I get that in the old days, we might not have wanted posthumous child support filings because we'd want the father to be able to defend himself, and say (if true) that he wasn't the parent, which is hard when you're dead.  But in the modern DNA era, this rationale seems largely irrelevant.  We know (to a 99.9996 probability) that A.S. is Mr. Britel's child.  That'd be more than enough to require child support -- regardless of Mr. Britel's testimony -- if he were alive.  Isn't it irrational to require the filing of a child support claim while the father's still alive?  Isn't that (ancient) requirement so crazy as to be a denial of equal protection?

The Court of Appeal rejects this contention as well.  It says there's a public interest in making sure that the estate gets distributed how the guy wants.  So it makes sense to require that any child support claim be filed while the dude's still alive, rather than once he's dead.

Hmmm.  I'm not so sure.

Seems to me that the whole point of child support is to support the kid.  Regardless of your interests or desires with respect to property distribution.

So where's the underlying public policy?  Why does the "during your lifetime" requirement make sense?  (At least in the face of -- as here -- essentially indisputable DNA evidence.)

Doesn't it also seem like the Court of Appeal's view has some pretty harsh consequences.  Imagine that a kid gets born on April 1 and the biological father gets killed by a drunk driver on the way to the hospital.  No child support then either, since no petition was filed during the guy's lifetime?  Really?

There's a psychological aspect to all of this.  As I first started reading the opinion, I definitely found myself agreeing with the Court of Appeal that this was an open-and-shut case, and that A.S. had not been "openly" acknowledged as Mr. Britel's child.  That sentiment, I think, even bled over to the part of the opinion that discussed the potential Equal Protection problem.

But the more I thought about it, the more I thought that Ms. Stennett had a point.  Why do we have the rule we have?  Does it really make sense?

Seems to me we'd want the kid to be cared for.  Regardless of what the mother did or when he elected to do it.

P.S. - Justice Fybel's concurring opinion agrees with a lot of this sentiment, and encourages the Legislature to change the law.  Makes sense to me.  But I wonder if equal protection doesn't require the same outcome in the present case as well.  Even without legislative action.

P.P.S. - It occurred to me overnight that all this may really be an equal protection argument about the child support rules, not the intestacy rules.  Still; an interesting issue, and one that I (like Justice Fybel) garners additional attention.

People v. Brothers (Cal. Ct. App. - April 21, 2015)

For those who believe child molesters deserve to die, I wonder what the reaction is to this fact pattern:

"Early in the morning of December 5, 2005 Brothers learned information that caused her to believe Gates had sexually molested Mimi and John. Brothers immediately summoned Gates to the main house to interrogate him about the alleged sexual abuse. She also asked Sidney to get Robinson from across the street. Within a few minutes of Robinson’s arrival, Brothers’s boyfriend, Sam Persons, also arrived at the house with his adult nephew, Christopher Yancy. According to the prosecution, Gates denied molesting the children but Brothers did not believe him. She beat Gates, striking him in the head and face multiple times with a broomstick with such force the stick broke in half. Then, Persons, Yancy and Brothers tied Gates up and moved him to the garage where they continued to beat him about the face and body and burn him with cigarettes. One of the men shoved a large cloth gag down Gates’s throat, causing him to suffocate. Los Angeles County Deputy Coroner Dr. Paul Gliniecki, who performed the autopsy on Gates, opined Gates had died of asphyxiation due to airway obstruction and other contributing factors, including blunt force trauma. After the beating, Brothers returned to the main house and told Robinson, “It’s over.” Gates’s body was found the next day on the side of the freeway. His hands were bound, and his body was covered by a plastic tarp that had been set on fire."

Assume for a moment that Ms. Brothers was right about the molestation.  Justice?  Just result, but unjust process?

Ms. Brothers was initially convicted of first degree murder, but the Court of Appeal reversed this conviction based on erroneous instructions.  The second jury convicted her only of voluntary manslaughter.

The Court of Appeal affirms.

Wednesday, April 22, 2015

U.S. v. Bonds (9th Cir. - April 22, 2015)

Barry Bonds wins again.

He lost in the district court, which was fine with his conviction after a jury trial for obstruction of justice.  He lost unanimously in panel opinion in the Ninth Circuit, which affirmed this conviction.

But remember.  Barry Bonds is a slugger.  He may strike out a lot.  But when he hits the ball, it goes long.  Way long.

This afternoon, he does exactly that.  His conviction is overturned by the en banc court.  10-1.  A crush.  With only Judge Rawlinson dissenting.

Mr. Bonds was helped by the draw.  There were three Ninth Circuit judges on his panel.  None of 'em got chosen for the en banc panel.

But even if the composition were different, this one wasn't close.

It's no procedural victory, either.  The reversal is for insufficient evidence.  Which means that Mr. Bonds gets off entirely.  No retrial.  Nothing.  He's good to go.

There's a lot of debate internally over exactly why the evidence against Mr. Bonds is insufficient.  A debate that makes some unusual bedfellows.  Judge Kozinski writes one opinion.  Joined by Judges O'Scannlain, Graber, Callahan, and Nguyen.  (I doubt you'll see that exact composition ever again in your lifetime.)  Judge Randy Smith writes another opinion.  Joined by Judges Wardlaw, Callahan, and Friedland.

Then Judge Reinhardt writes an opinion.  Agreeing a little with Judge Kozinski (but disagreeing a little bit as well), and ditto for Judge Smith.  And Judge Fletcher writes his own opinion as well.

Then you've got Judge Rawlinson's baseball-themed dissent.

Lots to mull over.

The net result of all of this is that Barry Bonds goes free.  The other result is a victory for giving totally nonresponsive answers, even under penalty of perjury.  If you can get away with it -- if the lawyer on the other side doesn't force you to answer the question -- you're not guilty of obstruction of justice.

It's instead the American way.

P.S. - In case you're interested, here's the question and -- totally irrelevant -- answer at issue in the case:

Q: Did Greg[, your trainer,] ever give you anything that required a syringe to inject yourself with?

A: I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t -- we don’t sit around and talk baseball, because he knows I don’t want -- don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends. You come around talking about baseball, you go on. I don’t talk about his business. You know what I mean?

Q: Right.

A: That’s what keeps our friendship. You know, I am sorry, but that -- you know, that -- I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see.

U.S. v. Alvarez-Ulloa (9th Cir. - April 21, 2015)

I'm confident that readers of this blog are not surprised when they're struck from a jury panel.  Not surprised, and in many cases, not bummed about it either.

But if you want to get an articulation of why you might be struck, here's a good example.

From the perspective of the prosecutor:

"Panelist 29 was struck, according to the government, because she was a third-year law student and had previously worked for a criminal defense firm. The government contended that this background was 'indicative of somebody who would be less trusting of the government in immigration prosecution.'"

From the perspective of the court (in this case, Judge Wake in Arizona):

"I find that both articulated grounds are facially neutral. She’s two years out of law school. She’s worked in law offices. . . . I’ve never been able to get on a jury my whole life. Nobody would let me on because I was a lawyer. And I didn’t take it personally. But that’s accepted wisdom of not having someone on the jury who may be in a position to, A, second guess you and, B, carry perhaps special influence into the deliberations of the jury because of the legal training. And her involvement in immigration criminal defense certainly suggests a special interest and sensitivity that, for purposes of a peremptory challenge, is facially neutral."

One the upside, you're a lawyer who's been to law school.  On the downside, lots of people won't let you sit on a jury.

Or is that another upside?

U.S. v. Walls (9th Cir. - April 21, 2015)

Perhaps if you're into the services of online prostitutes, you already know the various places (beyond Craigslist) in which such things are found.

But if not, Judge Bea's opinion informs you of at least one more:  (Definitely NSFW)

Tuesday, April 21, 2015

County of LA v. Financial Cas. & Surety (Cal. Ct. App. - April 21, 2015)

You can rely on what the Clerk tells you.

Plaintiff has a hearing set for 9:00 a.m. on February 22 in Department J.  Defendant doesn't oppose the motion.  Counsel for plaintiff says that he checked in with the Clerk, and then showed up again at "approximately" 9:00 a.m. (my emphasis), at which point he says that the clerk told him that the court had granted his motion.  So he left.

In fact, it's undisputed that the court hadn't granted -- indeed, hadn't even yet heard -- the motion.  So when that motion was in fact called a little after 9:00 a.m., and the moving party wasn't there, the motion was taken off calendar.  Ergo denied.

At which point plaintiff files a CCP 473 motion for relief.  Claiming excusable neglect.

The Court of Appeal agrees.

Justice Ashmann-Gerst says that relying on what the clerk tells you is reasonable.  Moreover, she also carefully parses the clerk's purported "denial" of what the plaintiff's attorney said transpired.

The clerk for Department J submitted a declaration that says that it wasn't her "habit or practice" to tell attorneys that their motion had been granted.  Which I'm certain is true.

But Justice Ashmann-Gerst notes that nowhere in the declaration did the clerk deny that that's what she did here.  That's a pretty big omission.

So either the clerk was being crafty -- but the Court of Appeal caught it -- or her declaration did not contain the part that was exceptionally relevant: namely, whether what plaintiff's attorney said was true or not.  My sense is that a simple "No, it's not true, I don't do that," would have sufficed.

One tiny point.  The Court of Appeal says that plaintiff's counsel was "Mathew J. Singer".  There's no attorney in California by that name.  Looks to me like the guy is actually Matthew J. Singer.  Two t's.

Personally, once I saw that my motion was listed on the calendar, I'd hang for the half-hour or so it'd take for my unopposed motion to be called and formally granted.  Regardless of what the clerk told me.

But if you do otherwise, the Court of Appeal will apparently have your back.

Parsons v. Ryan (9th Cir. - April 21, 2015)

Here's a neat twist.

A Ninth Circuit panel affirms the district court's certification of a class.  Judge Reinhardt writes the opinion.  The class consists of prisoners in Arizona.

The losing party then files a petition for rehearing en banc.  It starts to get some traction with some of the more conservative members of the Ninth Circuit.

But then the parties settle the case.

So now the Ninth Circuit can't reverse the panel's decision, since the case is now moot.

The unhappy judges on the Ninth nonetheless dissent from the denial of en banc review, in an opinion by Judge Ikuta.  They recognize that the case is moot, but say that the case should be taken en banc so the panel opinion can simply be vacated.  From their perspective, that'll work.  Then there's no more bad precedent.

But this opinion only gets six votes.  So it loses.

Doctrinally, I'm also not entirely sure that Judge Ikuta is right.  The Supreme Court has said that you don't vacate a district court opinion after the parties settle -- even though the case is technically moot -- because the losing party participated in making the case moot (i.e., the settlement) so vacatur is not an appropriate remedy.  That same reasoning seems applicable to decisions one level up; e.g., panel decisions in the Ninth Circuit.  So vacatur (e.g., pursuant to en banc review) would be inappropriate.

I can see a contrary argument based on the fact that appellate decisions (unlike district court opinions) entail precedent, so there's a public policy argument on the other side.  Maybe that's enough.  Though I can see contrary argument public policy arguments on the other side as well.

Justice Ikuta's opinion unfortunately doesn't address this point.  The only thing she says (in a footnote) is that "Although we can no longer use en banc review to correct the errors in the opinion because the case became moot before the mandate had issued, we can vacate the decision to avoid having the panel’s serious misinterpretations of Supreme Court Eighth Amendment and class action jurisprudence become the law of our circuit."  For which she cites "See United States v. Payton, 593 F.3d 881, 886 (9th Cir. 2010)."

But it seems to me that Payton says exactly the opposite.  It's a case that denied vacatur of a panel Ninth Circuit opinion based on mootness.  Hardly great support for a claim that vacatur of a panel opinion would be appropriate.  Plus, the portion of the opinion that Judge Ikuta cites -- page 886 -- again seems to say the exact opposite of Judge Ikuta's position.  Saying:  "It is true that our refusal to vacate the decision after it has become moot deprives a member of our court of the right to seek sua sponte an en banc rehearing in order to obtain a different decision on the merits (although it leaves open the opportunity to seek an en banc rehearing for the purpose of vacating our decision). We do not minimize that right, but have concluded that it does not overcome the equities we have described and does not justify erasing a decision that the panel issued when the controversy was still live, and that the parties have complied with and are content to let stand."

I agree that language from Payton seems applicable.  But it seems to me to say that even if (as here) en banc review is foreclosed, that doesn't mean that we should allow parties to settle the case (as here) and obtain a vacatur of the panel opinion.  The opposite of what Judge Ikuta seems to be saying.

I forthrightly admit that I'm not a thousand percent sure what the right answer should be with respect to whether Supreme Court precedent about vacating district court opinions in light of mootness should be the same with respect to appellate panel opinions.  But that's definitely an issue that I think Judge Ikuta (and the rest of the dissenters from denial) should have addressed in the opinion.  Beyond merely a cite to a prior Ninth Circuit opinion that, to me, seems to support a contrary view.

Monday, April 20, 2015

U.S. v. Mazzarella (9th Cir. - April 20, 2015)

Judge Gould remands this conviction back to the district court for some additional factfinding.  With a reminder that prosecutors are under an obligation to do justice, not merely to secure convictions.

My guess is that there might be a slight change in the result below after the remand is over.  But that the defendant -- who was changed with classic mortgage scams (straw buyers, inflated income claims, etc.) during the bubble -- would be convicted on retrial anyway.

None of which means we shouldn't get the result right, of course.

But Ms. Mazzarella shouldn't get her hopes up about getting off entirely.

Friday, April 17, 2015

Carlwig v. Carlwig (9th Cir. - April 17, 2015)

I'm confused.

I get that under the relevant child abduction treaty, federal courts sometimes have to wade into family law questions.  So while "Carlwig v. Carlwig" is a typical caption for a state court case, it's presence in the federal reporter isn't so crazy.

But I'm not sure I understand the Ninth Circuit's disposition of that case today.  Which reads, in full:

"Sarah Carlwig appeals the decision and order of the district court sending A.L.C. and E.R.S.C., dual-national American and Swedish children, to Sweden pursuant to the Convention on the Civil Aspects of International Child Abduction (the “Convention”), and its implementing legislation, the International Child Abduction Remedies Act, 22 U.S.C.A. §§ 9001–11. We have jurisdiction under 28 U.S.C. § 1291.

We hereby vacate the portion of the district court’s order, Carlwig v. Carlwig (in re A.L.C.), 16 F. Supp 3d 1075 (C.D. Cal 2014), concerning the habitual residence of E.R.S.C.


My understanding is that federal appellate courts review judgments, not reasons.  The district court ordered the kids sent to Sweden.  The Ninth Circuit doesn't seem to change that judgment.  So I do not understand why (or how) the Ninth Circuit "vacates" a portion of the underlying opinion.

The Ninth Circuit could write its own opinion, of course, in which it said that it affirmed the decision below but resolved the residence of one of the kids the other way.  Or could say that it was affirming but not deciding (because it didn't have to) where one of the kids lived.

But I'm not sure that appellate review encompasses "vacating" portions of an opinion's reasoning below.  I'd have thought (again) that review is of the judgment.

Maybe I'm wrong.

Thursday, April 16, 2015

Medina v. Chappell (9th Cir. - April 16, 2015)

All that work -- which I discussed here -- was for nothing.

"Never mind."

County of Orange v. US Dist. Ct. (9th Cir. - April 16, 2015)

This is a really good opinion by Judge Tallman.

It's a classic Erie issue.  One that Judge Tallman resolves clearly and with a great deal of erudition.  If one of my students wrote it for my civil procedure class, I'd definitely give it an A.  Indeed, I'm thinking about telling my students to read the thing if they want further insight (or clarity) into what you're supposed to be doing in an Erie analysis.  It's that good.

The issue is this:  Federal common law generally provides that predispute waivers of the right to a jury trial are valid so long as they're knowing and voluntary.  By contrast, California law generally holds invalid such predispute waivers.

In a federal diversity suit, which rule applies?  Federal law?  State law?  Something in between?

Judge Tallman answers the question.  Smartly.

I want you to read the entire opinion, so I'll somewhat keep you in suspense about the right answer.

But even an A paper can potentially be improved.  So I thought I'd share the two questions that I'd pose to a student were they to turn in a paper that mimicked Judge Tallman's analysis:

(1)  Judge Tallman grants mandamus relief.  He does so without applying the Bauman factors (prejudice, clear error, etc.) that generally govern such relief, holding that "Bauman does not apply in the extraordinary case where the petitioner claims erroneous deprivation of a jury trial."

Is that really the right rule?

Imagine that a plaintiff demands a jury trial eleven days after it files its complaint, the defendant moves (as here) to strike that demand as untimely, and the district court grants the motion.  So plaintiff's now lost its right to a jury trial.

I find it hard to believe that plaintiff is really entitled to have its displeasure with this ruling heard on a writ of mandamus to the Ninth Circuit.  Yet under Judge Tallman's theory, that seems exactly the rule, since (as he says) "Bauman does not apply in the extraordinary case where the petitioner claims erroneous deprivation of a jury trial."  Which is exactly what plaintiff is claiming.

I would agree that the Bauman factors may often be satisfied when a party is claiming an improper deprivation of a jury trial.  There's irremediable prejudice, etc.  But I don't agree that these factors are immaterial.  Seems to me we still care, for example, whether there's clear error, whether it's an oft-repeated mistake, etc.  Otherwise the routine plaintiff in the 11-day jury trial demand case gets its writ heard.  Which I don't think is either the rule now nor should become the rule.  Otherwise we need to tell the staff attorneys to start getting ready to grant a flood of writ petitions, because lots of cases involve a claim that someone's been improperly denied their right to a jury.

So that's something to ponder.

(2)  Judge Tallman holds that, here, federal common law applies (since it's procedural rule), but in creating that federal common law principle, federal courts should apply the underlying state law when that state rule is more protective than the federal common law constitutional minimum.  So here, federal common law allows waivers as long as they're knowing and voluntary, but since California is more protective of the federal jury trial right, federal courts sitting in diversity should apply the California rule.

That's a neat resolution.  And in the present case, I'm fairly sympatico with it.  I happen to like the California rule, so when Judge Tallman both preserves the federal minimum as well as allows states to go beyond it, I find myself smiling at the ultimate result.

But is that really the right legal principle?

I can think of a lot of areas where, under Erie, federal common law (as here) sets a constitutional minimum, state law might go beyond that, and yet it would seem crazy to me to incorporate state law as a result.  For example, in federal court, there might be a federal constitutional minimum that you're allowed to have an attorney represent you (e.g., under the Sixth Amendment), or to have that attorney meaningfully speak -- say, for two minutes, or three pages -- on your behalf (e.g., under the Due Process Clause).  Say that a state like California passes a law that's more protective of those rights.  That law allows you to be represented by ten lawyers of your choosing simultaneously.  And, given the importance of the underlying dispute, the state says that each of those ten lawyers has a right to file a brief of a maximum length of 100 pages each.

I find it hard to believe that the federal courts should -- much less should be obliged under Erie -- to follow such a rule.  Yet those rules follow the same lines as the present dispute.  They're "procedural" rules, so the federal courts generally get to create and apply their own legal principles.  Yet they're also "substantive" in a way -- the state court cares deeply about the underlying right -- and the relevant federal common law only establishes a "constitutional minimum".  So why doesn't Judge Tallman's theory equally obligate us to follow those (silly) state law procedural rules as well?

I wonder if the better rule is to simply bite the bullet and say that (1) we're allowed to create federal common law here (for the reasons Judge Tallman articulates), and (2) that common law rule is going to be a maximally protective one.  Regardless of what particular state law applies.  Isn't that a better -- i.e., more protective -- principle?  If we're allowed to create our own (good) principle, shouldn't we apply that rule in all cases, not just in ones arising under California law?  Especially since we're not obliged (as Judge Tallman concedes) to follow the latter in any event?

Perhaps we're constrained somewhat by precedent.  But I wonder if that same precedent -- or logic -- is consistent with Judge Tallman's (admittedly creative) result.  Or whether Judge Tallman's approach has a solution to the ten lawyer/lengthy brief hypothetical which seems to raise identical issues to those here.

To reiterate:  Judge Tallman definitely gets an A.

But can we make it an A+ without changing the result?

Wednesday, April 15, 2015

People v. Shivers (Cal. App. Div. - April 15, 2015)

I must admit that I didn't recognize the name "Pauley Perette".  But I am sufficiently marginally connected with reality that I know the face when I see it.  Despite having never seen "NCIS".

Inserting the picture is my attempt to turn this blog into a celebrity rag.  If you're into that sort of thing, you might also like this afternoon's opinion.  Which is all about her and her ex-husband; in particular, her ex-husband's conviction for violating a restraining order though conduct that arose from an unfortunate chance meeting in a restaurant.

Ms. Perette's ex-husband, Francis Shivers, does not come out looking well in the opinion.  For a very different view of the merits -- continuing today's "celebrity gossip" theme -- check this out.

I will say that the one unambiguous message from today's opinion is that if you ever find yourself accidentally near someone who you shouldn't be around, just turn around and walk away.  That's much better than pulling out a cell phone, taking a video, and screaming.

Trust me.

Association of Calif. Ins. Cos. v. Jones (Cal. Ct. App. - April 8, 2015)

These footnotes are big'uns.

I know the statute's long.  But to take one example, the first footnote is three and a half pages long.

And it's not the only multi-page footnote.  Footnote five, for example, takes up two full pages and half of two other pages.

Not especially easy to read.

Tuesday, April 14, 2015

Benetatos v. City of Los Angeles (Cal. Ct. App. - April 14, 2015)

Tam's (No. 6) Restaurant on South Figueroa in Los Angeles doesn't get great publicity in today's opinion from the Court of Appeal.

By contrast, the restaurant gets 3.8 stars on Google Plus, and 3 and a half stars on Yelp.

But maybe that's from customers who also like one-stop service for food, prostitutes, and dope.

Golden State Water Co. v. Casitas Municipal Water Dist. (Cal. Ct. App. - April 14, 2015)

I rarely read appellate opinions with the level of vigor and emphasis that Justice Perren displays in this opinion.  It's almost as though he believes respondents' position even more than they do.

Justice Perren analogizes appellant -- the Golden State Water Company -- to a monopolist and to King George III.  That's never a good sign for your side.  Suffice it to say that Justice Perren is on the side of the voters of the City of Ojai.  Who've decided to use eminent domain to take the water assets of Golden State and to pay for it with Mello-Roos bonds.

The Court of Appeal is fine with that.  And Justice Perren seems affirmatively enthusiastic about it.

Monday, April 13, 2015

County of Los Angeles v. Superior Court (Cal. Ct. App. - April 13, 2015)

It's facially a California Public Records Act case.  One you might otherwise ignore.

But you care.  Deeply.

The Court of Appeal holds that bills -- e.g., invoices -- are protected by the attorney-client privilege in California.

That's different than the federal common law rule.  The Ninth Circuit has held that the amount of the fee (among other things) isn't privileged.  So too have some other states.

Not so in California.  At least as of today.

SOURCE v. County of San Bernardino (Cal. Ct. App. - April 13, 2015)

It's hard to win attorney fee appeals that dispute the amount awarded.  So when the trial court only awards roughly $20,000 in fees, whereas the request was $230,000-plus, the appeal is unlikely to be successful.  There's simply too much discretion underlying the award.

Which is why the appellant here loses.  It's not a surprising result.

Much of Justice McKinster's opinion says exactly what you'd expect it to (rightly) say.  There's only one part of the opinion about which I thought comment might be appropriate.  Since that opinion says something that legions of opinions have previously said as well, and yet, I wonder if the argument is one that actually holds much -- or any -- water.

Here's what the Court of Appeal says in today's opinion:

"The trial court found that the law firm’s expenditure of 246 hours over a period of a year did not deprive it of the ability to take on other fee-generating work. SOURCE dismisses this finding as 'illogical,' in that the law firm would have made substantial fees for 246 hours spent on other, fee-generating work. It did not, however, offer any evidence that it had to turn down other work that it might otherwise have been able to accept in order to devote those 246 hours to this case. Accordingly, it did not show that its income suffered as a result of taking this case on a partial contingency."

In a way, I understand this sentiment.  I'm sure that Justice McKinster is right that the law firm was hardly in the habit of turning down paying work.  I strongly doubt that some client came in and said  "We want to pay you to do some legal work" but the law firm's response was "Oh, sorry, we're just too busy, so we'll have to turn you down:  We've got a case that's taking up a couple of hundred hours of our time already."  So, in one sense, the Court of Appeal is exactly right.

But hours -- and workload -- are nonetheless always fungible at the margin.  Sure, the firm may not have turned down a particular, would-have-paid client.  But it had to staff the case, and those lawyers expected to be paid.  And if they did more work, and put in more hours, they'd expected to be paid more.  Maybe not directly.  It's not like lawyers get overtime.  But the more hours you put in, the higher your salary generally has to be in order to compensate you for the hassle.  Similarly, the more hours a law firm has to work, the more lawyers it needs.

You may not be able to directly tie 246 hours to having to hire another associate.  Or partner, or whatever.  But 246 hours is never "free".  It always displaces something else of value.  Other work.  Other lawyers.  Other things to do.

Plus, what's true in one case is presumably true ad nauseum.  You can't get paid extra for one 246 hour case you took because it didn't "deprive" you of the ability to take on new work.  Similarly, you can't get paid extra for a second 246 hour case because you can't make the same showing there either.  Ditto for the third, fourth, tenth, and hundredth similar case.  So you can take on a thousand 246 hour cases and the Court of Appeal will still say that you can't "show" that this stops you from taking on other work.  Even though obviously it does.  You can't do a thousand 246 hour cases and still do the work you're presently doing.  You've either got to turn down work or hire more lawyers.  That's what you want to get paid extra for.  But that's what the Court of Appeal says you don't get.

So the Court of Appeal's argument here is true as far as it goes.  Almost never will a firm be able to prove that a single case displaced other paying work.  Law firms simply aren't in the habit of turning down work.

But that reality may prove too much.  Since it's always true.  Which would make the underlying factor meaningless.

Work trades off with other work, which trades off with leisure, which trades off with a leaner staff (and lower expenses).  There's no such thing as a free lunch.

Even at the 246-hour level.

In Re A.R. (Cal. Ct. App. - April 9, 2015)

"The initial hearing report recommended that A.R. and his half siblings remain in the home. The report stated: 'While there are significant concerns regarding [father’s] alcohol abuse, domestic violence against [mother], the emotional stability of the mother, and past use of inappropriate discipline, the children appear well-cared for, and state that they feel safe in the home at this time.'”

Seems damning with faint praise to me.

Friday, April 10, 2015

U.S. v. Urrutia-Contreras (9th Cir. - April 10, 2015)

It's not just the defendant who has the right to speak before a federal judge pronounces a criminal sentence.  So does the government.

This is important when, say, the U.S. Attorney might actually agree with the defendant.

The federal judge doesn't necessarily have to agree with what the defendant and/or U.S. Attorney say.

But the rule requires that the judge at least listen.

So the Ninth Circuit reverses and remands.

Thursday, April 09, 2015

Paul v. Patton (Cal. Ct. App. - April 9, 2015)

I'm surprised this is as close as it appears to be.

Guy has four kids with a wife who dies.  Guy remarries.  Guy's got a lot of money, including lots of separate property.  Guy writes a trust that says that Second Wife gets to life in House for the rest of her life and will get all the net income from Store, but everything else gets split up between the four kids when he dies.

Pretty straightforward.

Then things between Guy and Second Wife start to go south.  Guy amends Trust to say that Second Wife no longer gets to stay in House forever, and instead that House will be sold and Second Wife given her marital share (half), plus Second Wife no longer gets all the net income from Store but only $4,000/month.

Pretty straightforward as well.

With one problem.  When Guy's attorney drafted the amendment to the trust, he accidentally wrote the thing (using the term "beneficiaries" in an inapposite way) such that under the amendment, Second Wife also now got a fifth of the entire estate.  Which she never even got when things were good between her and Guy, and which Guy didn't actually intend to do.


Kids and Second Wife then litigate.  Attorney repeatedly says very candidly that there was a scrivener's error and that Guy didn't intend to give Second Wife that extra money.

Ultimately there's a settlement.

Kids then sue Attorney for malpractice in screwing up the amendment to the trust.

Seems like a pretty good claim to me.  But the trial court dismisses the lawsuit on a demurrer.  Holding that Attorney had no duty to Kids.

The Court of Appeal reverses, holding that Attorney may well have had a duty to Kids since they were intended beneficiaries.  To which I'd say:  "Duh!"  To me, if there's ever a case where the Kids should be able to sue, it's this one.  Attorney writes a trust.  Attorney admits that the trust is screwed up and that the intended allocation isn't what's reflected therein.

Sounds like exactly why we have lawsuits.  As well as malpractice insurance.

The Court of Appeal nonetheless thinks the case is a close one.  And there's indeed some real authority on the other side.

But to me, it's a no-brainer.  Of course the kids should be able to sue.  Of course there's a duty.  To leave the kids out in the cold on this one, with no remedy whatsoever, would be absurd.

Admittedly, I feel a little bad about the policy consequences of such a result.  I'm a little worried about incentivizing Attorney to lie in the underlying litigation in order to cover his own butt.  The lawyer here, Santa Cruz lawyer Richard Patton, forthrightly testified in favor of Kids in the underlying suit that Guy didn't intend to benefit Second Wife in the amendment and that to the extent the amended trust did so (which it certainly seems to do), it was a scrivener's error; i.e., his bad.  That's commendable.  It'd have been fairly easy to instead say "Oh, no, he wanted exactly what I put down; we were all very clear on that."  That way Kids would have a much harder time suing him.

But Attorney did the right thing.  And now he gets sued.  Hoisted, in part, on his own petards.

But, in the end, I'm willing to tolerate that.  He's being sued because he (allegedly) screwed up.  Not just because he admitted it.  To hold that there's no duty would be a bigger problem than a rule that admits that there's a duty and that just hopes that we can get the truthful testimony we need to figure out who, if anyone, is liable in a given setting.

In short, Justice Premo's opinion is right.  Perhaps even more than he thinks.

Wednesday, April 08, 2015

People v. Sedillo (Cal. Ct. App. - April 8, 2015)

I was watching an old episode of Mad Men last night in which there was a great line.  January Jones is having trouble with her daughter, who's throwing a tantrum, and calls her ex-husband (John Hamm) at work and opens the call with the line "Do you mind if I strangle your daughter?"

To which he responds:  "Should we be having this conversation over the phone?"


I was reminded of that line when I read this opinion today.  Because, in the real world, Lisa Sedillo was the getaway driver in a gang-related shooting in Long Beach in 1992.  One of the victims was killed, and the actual shooter was convicted of murder.  But even though witnesses identified Ms. Sedillo as the getaway driver from a photo array, none of 'em was able (or willing) to identify her at the live line-up.  So she got off.  Never even charged.

Until 2010.  At which point she admitted her involvement in the 1992 murder over the phone.  A conversation that just so happened to be recorded pursuant to a wiretap of her phone in an unrelated matter.


When you've essentially beat a murder rap, it's perhaps best not to admit your involvement in the murder.  Especially over the phone.

Yet another thing we can learn from Don Draper.

Tuesday, April 07, 2015

People v. Guzman (Cal. Ct. App. - April 2, 2015)

The Court of Appeal says:  "The deputies conducted a patdown search of Guzman and found items commonly used as burglary tools in his pockets, including a flathead screwdriver, a long flashlight, two AA batteries, and work gloves."

I wonder if a patdown search of several of us over a weekend might find similar "burglary tools" in our possession.  Tinkering away in our garage or elsewhere.

Mind you, when the police subsequently searched our vehicles, they likely wouldn't find what they found in Mr. Guzman's car:  "27 pieces of jewelry that had been stolen two or three days earlier from a residence about a mile away."

Still, isn't it interesting how what we might characterize as "stuff we commonly carry to fix things around the house" become "burglary tools" in the hands of others.

Monday, April 06, 2015

Ong v. Fire Insurance Exchange (Cal. Ct. App. - April 3, 2015)

I find myself in the unusual position of agreeing with both the majority opinion as well as the dissent in this case.  Which is not rationally possible, since they reach opposite results.

Maybe that's just another way of saying that I'm on the fence on this one.  Which is unusual for me.

It's a simple, straightforward fact pattern.  There's a homeowner's insurance policy, and it contains an exclusion for "vandalism or malicious mischief."  Plaintiff owns the house, and after his last tenants move out, it's vacant for a while.  During which time a vagrant slept in the house, built a fire (with firewood) on the kitchen floor to keep warm, and the fire got out of control and burned the house down.

Does what the vagrant did constitute "vandalism or malicious mischief?"

Justice Chaney writes the majority opinion and says "No."  She says that "vandalism" is generally defined as meaning the "wilful or malicious destruction or defacement of private property."  Notice that this definition has the same word as in the "malicious mischief" component of the exclusion:  "malicious."  "Malicious" in turn is generally defined as meaning "having or showing a desire to cause harm to someone".  So if the vagrant had intended to burn the house down, that'd clearly be a "malicious" act and uncovered by the exclusion.

But that's clearly not the case here.  The vagrant was just trying to keep warm.  Indeed, there's some real evidence that once the fire started to get out of control, the vagrant tried to stop it by throwing the firewood out the door.  To no avail.

So Justice Chaney says the was no "malicious" act here.  The guy (or gal) just wanted to keep warm.  The destruction of the house was an accident.  Hence there's coverage.

That's a good argument.  It makes sense to me.

But so does the dissent.  Justice Rothschild says that, yeah, maybe the vagrant didn't desire to burn the house down.  But s/he nonetheless started a fire on the kitchen floor.  That was going to clearly harm (e.g., put burn marks) on the floor.  That, she says, counts as "malicious".  When you know that what you're going to do is to partially burn up a kitchen floor, that's covered by the exclusion.  Hence no coverage.

That's a pretty good argument too.

Yet both can't be right.  Or at least both can't be dispositive.  Either the exclusion applies or it doesn't.  So you've got to choose.

It's a tough call.

My intuition is that the doctrine of double effect might help resolve the resulting conflict.  Since the vagrant didn't really "mean" to burn the kitchen floor, even though that was the natural consequence of his or her act -- s/he simply wanted to keep warm.  But applying that doctrine here is complicated, and I haven't entirely worked out the ramifications.  I nonetheless have a sense that this very longstanding philosophical concept might be well-suited to help sort things out here.

The other thing that might tip the scale is ambiguity.  The definition isn't rock solid here.  Reasonable minds might well (indeed, do) differ.  So maybe we resolve the resulting ambiguity against the entity that drafted the policy; i.e., the insurance company.  Hence coverage.

Maybe.  I'm sure that Justice Rothschild would say that the policy is not ambiguous.  It's clear.  The vagrant clearly "intended" to burn the floor, hence the exclusion applies.  She'd likely say that there's no coverage here just like there'd be no coverage if a cold vagrant deliberately burned the entire house down in order to get even more heat from the thing.

And she'd have a point.

In short:  This one's really hard.  Both sides could easily be right.

Though only one can be.

Friday, April 03, 2015

Sedlock v. Baird (Cal. Ct. App. - April 3, 2015)

I like everything about this case.

I like that the City of Encinitas started a yoga program for its schoolkids.  It's good exercise.  It's a great thing.  Were I a better man, I'd do it.  So getting kids started on it is great.  That Encinitas -- a funky beachside city in which I formerly resided -- did it is wonderful.

But I also like that the plaintiffs felt comfortable enough to challenge the program.  They think that yoga has a substantial religious component.  As it surely can.  They're worried that we're potentially mixing church and state here.  That's a no-no.  So they file a lawsuit.  I like that people are vigilant about this.  The First Amendment is in there for a reason.

I also like that amici then pour in.  People care.  Great job.  Let the court know.  Give 'em your perspective and arguments.  On both sides.

One of the interested parties even intervenes.  Even better.  Plus, they've got a great name.  "Yes! Yoga For Encinitas Students."  Love it.

We've got a great judiciary.  We take our First Amendment rights seriously.  We assess the validity of the program at issue through participation by affected citizens, committed advocates, and the steady work of neutral, informed judges.

What a country.

Finally, and importantly, I also love the result.  The trial court finds that the Encinitas yoga program doesn't violate the First Amendment.  The Court of Appeal affirms.

They're right.

I can readily imagine a yoga program that might well be unconstitutional.  But this one isn't.  The school district has done an exceptionally good job removing any religious components from what is clearly (in my view) a secular exercise program.  Indeed, I think Encinitas has probably even been more protective in this regard than it need be.  Some representative examples:

- The program takes down any posters about India (for fear of "referencing" the Hindu religion);
- They rename the "lotus" position -- named after a plant, for goodness sake, not a god -- into the "criss-cross-applesauce" position; and
- They tell the kids to stop saying "namaste".  Apparently a "Howdy," "Aloha," or fist-bump will do.

The truth of the matter is that, at least as most people practice it in the U.S., yoga's pretty much an entirely secular experience.  Sure, there's a "mellowness" and meditative aspect to it.  And there are similar things in the religious tradition from which it arises.  So is there a hint of religion here?  I wouldn't disagree.

But, in truth, we've secularized the poop out of it.  I've got no problem presenting it to kids.  Indeed, I think it's a good thing, not a bad one.  And certainly doesn't "establish" the Hindu religion in violation of the First Amendment.

I can think of a plethora of religiously-backed -- but presently "secular" -- parts of public schools that have a much deeper connection with religion than the challenged yoga program here.  For example, it's hardly a coincidence that the "winter" break falls over Christmas.  Or, to take an especially timely example, the current "spring" break for many students.  Formerly called "Easter" break.

Why don't we have school (or, for most people, work) on Sunday?  Didn't just happen randomly.  Religious backdrop.  Sabbath.  That's an integral part of most schools.  Hard to argue that that's a "secular" tradition that's perfectly legitimate but that performing yoga somehow crosses the line.

We've secularized a lot of things.  Including but not limited to yoga.  Which is not at all to take away from those who want to practice it religiously, or find the religious and/or spiritual component to be a significant part of their experience.  Any more than taking off a Sunday (or a Saturday, or a Friday night) for secular reasons detracts from the experience of someone who takes off those days to keep the sabbath and who finds such conduct religiously fulfilling (or compelled).

Different strokes for different folks.

So I like what the Court of Appeal does here.  Indeed, I've liked a lot of what the Court of Appeal has done lately.  (Informed readers may well understand my reference.)  That today's opinion gets issued on Good Friday is just another bonus.

So heading into the weekend, I say to all:  Namaste.

Chula Vista Citizens v. Norris (9th Cir. - April 3, 2015)

One might initially think that an en banc opinion by Judge Reinhardt that involved an analogous issue to Citizens United -- here, whether a city could permissibly allow only "natural persons" (as opposed to corporations) to sponsor an initiative petition -- would involve a close ideological split.  Especially when that issue is combined with a municipal requirement that the official proponent's name appear on the initiative petition circulated to voters.  After all, there's a First Amendment issue with respect to both requirements.  And, remember, it's an en banc opinion.  Presumably the panel did something that the en banc court felt necessitated review; e.g., didn't like.

That last part's true.  The panel opinion (authored by Judge O'Scannlain) thought that there was a First Amendment problem here.

The en banc court does not.  It's an 11-0.

U.S. v. Tamman (9th Cir. - April 3, 2015)

Just a reminder:

You can be a partner in a major law firm.  You can hire Alan Dershowitz to handle your appeal.

But if you screw up, you can still be sentenced to 84 months in federal prison.

And lose your appeal.

Thursday, April 02, 2015

Ellis v. Ellis (Cal. Ct. App. - April 2, 2015)

This is yet another example why you don't wait until the last day to file your Notice of Appeal.
 Especially when there are multiple judgments entered on the same week.

Even attorneys can mess it up.  Fatally.

File early.  No harm.

As opposed to filing late.

In Re R.T. (Cal. Ct. App. - April 2, 2015)

Look for the California Supreme Court to grant review in this one.

"A “rebellious” and “incorrigible” teen repeatedly runs away from home, placing herself and her infant daughter at “substantial risk [of] . . . serious physical harm.” (Welf. & Inst. Code, § 300, subd. (b)(1).)  Can the juvenile court assert dependency jurisdiction over the teen on the ground that her mother, who tried everything she could, was still unable “to adequately supervise or protect” the teen? (Ibid.) In re Precious D. (2010) 189 Cal.App.4th 1251 (Precious D.) said “no,” reasoning that the first clause of section 300, subdivision (b)(1), requires proof of parental culpability. We respectfully disagree, and hold that the language, structure, and purpose of the dependency statutes counsel against Precious D’s conclusion that this provision turns on a finding of parental blameworthiness. When a child thereby faces a substantial risk of serious physical harm, a parent’s inability to supervise or protect a child is enough by itself to invoke the juvenile court’s dependency jurisdiction."

Regardless of whether today's opinion is right or wrong, the split -- and its importance -- seems to legitimately call for a settled rule.

Wednesday, April 01, 2015

People v. Huggins (Cal. Ct. App. - March 30, 2015)

We don't trust in-custody inmate testimony because (inter alia) we're concerned  -- for good and empirical reasons -- that inmates might lie and incriminate another prisoner to get a reduced sentence in their own case.

We don't trust accomplice testimony for identical reasons.

As a result, in California, you've got to have corroboration.  You can't convict someone based on only the testimony of a "jailhouse informant".  Penal Code Section 1111.5.  Ditto for accomplice testimony.  Penal Code 1111.

Imagine a case where you've got no objective corroboration.  But you have both accomplice and jailhouse informant testimony.

Is that enough?  Do two presumptively unreliable pieces of information combine to create information that is now reliable?

The Court of Appeal says "Yes."

I know that some of you may be thinking that this is another April Fool's joke.  But it's not.  That's actually the Court of Appeal's holding.

Elmore & Doe vs. The Execution Table (9th Cir. - Mar. 30/April 1, 2015)

Two death penalty habeas cases.  Here's a summary of the first one (from the concurring opinion):

"[Elmore's] lawyer, who had never before handled a capital case, advised Elmore to plead guilty without receiving any agreement as to sentence in return.  [FN:  “[P]leading guilty without a guarantee that the prosecution will recommend a life sentence holds little if any benefit for the defendant.” [Cites]] . . . . The lawyer allowed Elmore to appear in shackles at his first appearance before the sentencing jury. The one-hour mitigation presentation consisted entirely of unconvincing attempts to prove through court personnel that Elmore was remorseful. And, counsel never investigated whether this senseless crime was at least in part the product of Elmore’s organic brain damage."

The second one is very similar.  Horrible crime.  Subpar representation by the attorney.  Sentence of death.

Judge Milan Smith writes the opinion in the first case.  Judge Reinhardt writes the opinion in the second one.

The first case (by Judge Smith) reverses the death penalty; the second (by Judge Reinhardt) affirms it.

I say that, of course, only because it's April Fool's Day.  Not even a good "trick".  As you might expect, it's actually the other way around.

I'll add that Doe's case gets assigned to a panel that includes not only Judge Reinhardt, but also Judge Pregerson (as well as Judge Wardlaw).

Not really what the San Diego District Attorney's Office really wanted to see, I'm sure.