In Re Marriage of Olson (Cal. Ct. App. - July 30, 2015)

Here's a nice, short, and equitable opinion.

Justice Rothschild holds that even though the relevant case law is sparse, and even though there's a provision in the Family Code that says that family law cases are otherwise treated like any other civil dispute, a parent isn't precluded from asking that a child custody order be modified just because a default judgment was initially entered against her in the dissolution action.

A spouse might default for any number of reasons.  Maybe they're poor.  Maybe they're emotionally burdened.  Maybe they're content (at least initially) with what their spouse is requesting in the divorce.

Whatever.  The child custody portion of family law cases isn't primarily concerned with what the parties want (or wanted).  It cares instead about the welfare of the child.  Even if one spouse was initially content to have (as here) joint custody, and hence defaulted, that shouldn't stop her from moving to modify this order if circumstances have changed.  Nor should she be required to undo the entire dissolution proceeding -- e.g., seek relief from default -- in order to do so.

That's what the Court of Appeal holds.  And it's right.

Didn't even take a full eight pages.

Rodriguez v. RWA Trucking Co. (Cal. Supreme Ct. - July 30, 2015)

The only thing that the California Supreme Court did today was noncontroversial (albeit unusual).

Yet I think that what the Court did is squarely impermissible.

Part of it I'm fine with.  The Court of Appeal issued an published opinion in 2013.  The California Supreme Court granted review in 2013.  That meant that the opinion was automatically depublished.  (At least under California's crazy rules, which will hopefully soon be amended.)  So far, so good.

But then, earlier this year, the petition for review was dismissed.  That's fine too.  Though the dismissal of the petition doesn't automatically republish the case.  So today, the Court orders the opinion republished.

It can do that.  It seems right.  You granted review, then dismissed review.  You're allowed to put the opinion back to its old published -- precedential -- status if you'd like.  Fair enough.

During this whole process, however, the status of one of the cases cited in one of the footnotes of the opinion had changed.  No biggie.  The California Supreme Court simply fixes the problem, and in addition to republishing the opinion, today's order declares:

"The opinion is ordered republished with the following amendment to original footnote 6 at page 723 (additions underlined and deletions stricken through):

Division Five of this appellate district rejected Fitz-Gerald’s analysis in part in People ex rel. Harris v. Pac Anchor Transportation, Inc. (May 18, 2011, B220966) 195 Cal.App.4th 765, review granted August 10, 2011, S194388.

Pac Anchor is currently under review by the California Supreme Court, where the question presented is as follows: “Is an action under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) that is based on a trucking company‟s alleged violation of state labor and insurance laws „related to the price, route, or service‟ of the company and, therefore, preempted by the Federal Aviation Administration Authorization Act of 1994 (49 U.S.C. § 14501)?”"

You can see why the Court does this.  The status of the case has changed, so it updates the footnote, and also makes a tiny change to the text to make clear that the Court of Appeal was talking about an appellate district.

Okay.  Fine.

Except you can't do that.

I've looked at the rules.  There's clearly a rule that says that the California Supreme Court can republish a depublished opinion.  But I can't find anywhere a rule that says that the California Supreme Court can change the text of the opinion, either inside or outside of the context of a republication order.

Sure, the Court can grant review, and enter its own opinion if it wants.  An opinion that then has the precedential effect of an opinion by the California Supreme Court.  But it can't change the opinion, even in a minor way, of the Court of Appeal.  Or at least I can find no rule anywhere that says otherwise.

Moreover, the existing rule makes sense.  For one thing, the Court shouldn't be allowed to put words in another person's mouth -- here, the justices who wrote and concurred in the opinion in the Court of Appeal.  For another, we've got a straightforward review process, and it works just fine, so there's no real need to allow the California Supreme Court to "drop down" to the Court of Appeal for a moment and line-edit that tribunal's opinions.

Look, I get it:  The amendment here is totally nonsubstantive.  I have no doubt that the Court of Appeal would be totally fine with it.

But rules are rules.  The California Supreme Court can publish, or depublish, or republish an opinion from the Court of Appeal.  It can even grant review and supercede it with an opinion of its own.

But at least as far as I can tell, it's not allowed to amend the opinion below.  Either in a substantive fashion or otherwise.

Notwithstanding what the Court does today.

Organized Village of Kake v. USDA (9th Cir. - July 29, 2015)

It takes a village to fight about a road.  Or lack thereof.

Around a third of National Forest Service lands are inventoried roadless areas; i.e., deliberately don't have roads.  That way they're wild.  Really wild.  Of course, it also means they're harder to get to.  Some people like that.  Some don't.

In 2001, the Department of Agriculture (which administers the NFS), after studying the issue, thought that it made sense to keep the Tongass National Forest roadless.  But two years later, relying on the same factual record, it reversed course, finding that it make sense to allow roads in the place.

Judge Hurwitz authors a majority opinion for the en banc court that says that reversal itself doesn't make sense.  So remands the case for a reasoned explanation for the change as required by the Administrative Procedure Act.

Judge Milan Smith dissents.  He thinks it makes perfect sense why the Department of Agriculture changed positions.  Because when the Department of Agriculture decided, after substantial study and public input, to keep the Tongass National Forest roadless, President Clinton was in office.  But two years later, President Bush had taken over.  So he was entitled to think (as I'm sure he did) that getting more timber (or making more money) from Alaska's wilderness was more important than keeping it wild and free.  Which satisfies the Administrative Procedure Act.

Needless to say, the majority disagrees.  The vote is 6-5.

But things don't end there.  Judge Callahan also authors a separate dissent.  Arguing that Alaska -- through the Organized Village of Kake -- doesn't have Article III standing.  No one else joins her.  But since she joins the principal dissent on the merit anyway, there's no practical consequence.  The biggest impact of the dissent is that she gets a chance to quote a movie line, saying that there's no standing because "Alaska cannot show us the money."  Or, in legal parlance, can't show how it's injured.

Other arguments are made as well.  Judge Smith's dissent also maintains that the majority is substituting its own value judgments for law.  The majority likes the environment, he essentially says, so that's why it's not happy with -- and reverses -- the decision to build roads in the Tongass National Forest.  Judge Hurwitz doesn't agree, and Judge Christen authors a separate concurrence, joined by Chief Judge Thomas, that expressly says that politics aren't what motivated either the district court's view or the Ninth Circuit's.  We decide legal issues, he says.  Not naked policy preferences.

The majority opinion, which keeps the Tongass National Forest roadless, was joined by Judges Thomas, Pregerson, Fletcher, Christen, Nguyen, and Hurwitz.  Six left-of-center judges (albeit, in particular instances, only slightly)  The dissent was joined by Judges Kozinski, Tallman, Clifton, Callahan, and Smith.  Five right-of-center judges (albeit, in particular instances, libertarian-leaning as well).  So the dissent has a point that the lineup might in part reflect value judgments.

Though what's sauce for the goose is equally true for the gander.  My sense is that the left-leaning judges who join the majority opinion are no more substituting their policy preferences for law than are the right-leaning judges who dissent.

Lest the opinions end there Judge Kozinski authors a final dissent.  Noting " the absurdity that we are in the home stretch of the Obama administration and still litigating the validity of policy changes implemented at the start of the George W. Bush administration" and arguing that "the glacial change of administrative litigation" is suboptimal.

Though the word "suboptimal" is mine.  Judge Kozinski instead articulates hyperbolic, Scalia-like claims, including an allegation that the United States has become "more an oligarchy governed by a cadre of black-robed mandarins" and his alleged "worry about the future of the Republic" from cases like this one.

All of this in a dissent that's a single paragraph.

My view is that the overwrought claims here do a disservice to their authors and to the judiciary as well.

Dietz v. Bouldin (9th Cir. - July 24, 2015)

When we discuss inconsistent (or incoherent) jury verdicts in Civil Procedure, I often tell my students that a court is not permitted to reassemble the jury and order them to deliberate further once the jurors have been dismissed.  That's a reasonably accurate statement of the law.

But the truth is slightly more complicated.

As today's Ninth Circuit opinion notes, while some circuits (e.g., the Eighth) hold that this is a nice, bright-line rule, other courts -- including today's opinion from the Ninth -- hold that the magic words "Jury dismissed" aren't actually magic.  You can still pull the jurors back in for redeliberations.  At least if, as here, the jurors haven't actually left the building -- or, perhaps even if they have -- so long as you make sure they haven't received any outside prejudicial communications in the meantime.

The opinion leaves open the question of how long is too long.  And that's a darn tough question.  One that's a decent argument for the Eighth Circuit's contrary rule.  I see the Ninth Circuit's point that it's a bit silly to not let the jury engage in further deliberations if, say, they're still in the jury box.  And that same principle would arguably apply if they've all just left and are now in the hallway outside the courtroom.

But what's the principled stopping point?  What's too late?  Outside the courtroom doors?  On the bus back to home?  The next day?  The next week?  The next year?

The Ninth Circuit puts a lot of stock in the fact that the jurors said they hadn't yet discussed the case with anyone else.  But if that's the dispositive fact, then presumably you can recall the jurors years (or decades) later so long as they similarly testify, no?  Surely that can't be right.

Judge Fisher's opinion says that in this era of smartphones and Twitter, it's just as likely that the jurors would have improper post-deliberative contacts inside the courtroom as outside of it.  That's true.  But I think that argument cuts both ways.  It's true that it can be used to show that so long as you're allowing jurors to be reassembled from the hallways (as some prior courts have done), you can perhaps equally reassemble them from the first floor or right outside the building, since they might have fired off a blog post in any of these places.

But it's also a good argument for the Eighth Circuit's contrary bright-line rule.

People v. Leon (Cal. Supreme Ct. - June 29, 2015)

Richard Leon is a bad, bad guy who robs and shoots people for utterly no reason.  He was sentenced to death, but the California Supreme Court unanimously reverses his sentence, holding that three prospective jurors were erroneously excluded based upon their views about the death penalty.

The state could legally attempt on remand to again sentence Mr. Leon to death.  But I hope it doesn't try.  Notwithstanding the fact that I hope that Mr. Leon stays in prison for the rest of his life.

The crimes at issue, as well as the trial, transpired in early 1993.  Over two decades ago.  It's taken that long, and consumed that many resources, just to get the case in front of the California Supreme Court.

To try again would only generate another decades-long morass.

Just finish it.  Put the guy in prison forever and leave it at that.  No need to waste forty (or more) years of litigation on the guy.

People v. Murillo (Cal. Ct. App. - July 22, 2015)

You can't threaten the victim of a crime with violence.  Even if that threat is in the form of a rap song.

Jane Does 1 and 2 were victims of rape.  Shane Villalpando was convicted of sexual offenses involving them, and sentenced to jail, which didn't make his close friend Anthony Murillo -- a.k.a. "Little A" -- very happy.

So he expressed himself in song.  Dedicated to "his homie Shane".  Which referred to Jane Does 1 and 2 by their first and last names, described them as "hoes," and said:

"[T]hese bitches caught him slippin.  Then they fuckin snitchin [¶] . . . I'm fucking all these bitches [¶] Hunting down all these snitches [¶] . . . Shit you know we have no fear [¶] I'll have your head just like a dear [¶] It will be hanging on my wall [¶] . . . I said go and get the Feds [¶] Cuz your gonna to end up dead [¶] You're going be laying on that bed [¶] Cuz im coming for your head bitch."

Nice.

Mr. Murillo was charged with threatening a crime victim with violence.  The trial court dismissed the charges, finding that the lyrics were protected speech.

The Court of Appeal reverses.

Maybe it was just a song.  Or maybe it was an actual threat.  That's for the trier of fact to decide.

Seems right to me.  Including the victims' true first and last names makes the thing fairly well-directed.  I'm not sure that every jury would convict beyond a reasonable doubt.

But some might well.

People v. American Contractors Indem. Co. (Cal. Ct. App. - July 21, 2015)

People repeatedly complain about cases being resolved on meaningless "technicalities".  Those alleged technicalities often entail critical constitutional liberties, so on the whole, I find such complaints generally overwrought.

Yet here's a case where the critique seems justified.

American Contractors Indemnity Co. posts a $40,000 bond for someone in a criminal case.  Defendant thereafter fails to show up.  There's no dispute that the guy is in the wind and that the surety can't find him.

So the bond gets forfeited, right?

Nope.

The trial court erroneously entered an order that forfeited the bond one day early.  There's no dispute that this error didn't actually matter; the guy was long gone.  But one day early it was.

The surety eventually filed a motion that opposed the forfeiture on the ground that it was one day early.  The Court of Appeal holds that this motion was timely, even though it wasn't filed within 15 days of the forfeiture, because the surety can file such a motion any time prior to the forfeiture being final (e.g., within 60 days).

Fair enough.  We want to give people time.

So it turns out that the forfeiture was indeed ordered one day early.  And the surety could properly wait a fair piece to object to it.

But, again, it didn't matter.  So surely the county gets to argue that, right?  Harmless error and the like?

Nope.  There's a 90 day time limit on forfeiture orders.  The first order was one day early, so it doesn't count.  And by the time the motion for relief from forfeiture was resolved (e.g., on appeal), 90 days had long since expired.

So now the bond can never been forfeited.  Even though the guy indisputably skipped bail.

That doesn't seem right.

At a minimum, I'd change the statutory scheme.  If, as here, the early forfeiture didn't matter, that seems to me a defense.  Harmless error.

Alternatively, I'd apply tolling.  If, as here, a forfeiture order gets reversed on appeal, I'd extend the 90 day deadline during the period in which the objection to this forfeiture (e.g., the appeal) was pending.  So if, as here, the guy still hadn't shown up for over two years after he skipped out on bail, and the surety still could not find him, that'd be more than enough for me.  Bail forfeited.

How about a suggestion to the Legislature in this regard?  The result here seems manifestly an unjustified windfall to the surety who posted bond for a guy who indisputably skipped bail.

In Re Marriage of Davis (Cal. Supreme Ct. - July 20, 2015)

I hate today's opinion from the California Supreme Court.  Hate it.

It's not that I stridently disagree with the result.  In fact, I may well have agreed with it.  As did every single one of the justices on the Court.

But, to me, the way the opinion gets there exemplifies the worst sort of modern-day legal reasoning.

The basic deal is this:  When a married couple is together, their earnings are normally community property, but when they're living "separate and apart," their earnings are generally separate property.

What does it mean to be living "separate and apart?"

To me, the answer's not crystal clear.  On the one hand, if you're living in separate dwellings, that's clearly a case of living separate and apart.  Even if you're just living (as some people do) across the street.

But what if you're living in the guest house?  What if you're living in the garage?  What if you're living in the den?  What if you're sleeping on the couch?  At what point is your life sufficiently distinct from that of your spouse that you're not longer "together," but are instead "separate and apart"?

The particular case at issue is a decent example.  The couple here stopped having sex right after their son was born.  Nine years before Wife filed for divorce.  They stopped sharing a bedroom.  Wife did her own laundry (and that of the kids) but not Husband's.  They had their own bank accounts for years.  They had a ledger that separated their finances and spelled out what contributions each one had to make for various expenses.  In every way imaginable, they were simply "staying together for the kids" but living separate lives.  Even going so far as to take separate vehicles whenever they went to their kids' activities (e.g., plays and sporting events).

Think about that for a moment.  They lived in the same place, but when their son played a soccer game, they took different cars there and different cars back.

You can't get much "separate" than that.

But they nonetheless shared the same roof.  Literally.  So does that mean that they're categorically not living "separate and apart"?

Were I to answer this question, I'd think it a difficult one.  Togetherness is a continuum.  It may well be that for all practical purposes, Husband and Wife here were living entirely separate lives.

But I'd be worried about the consequences of drawing a line that focused on the particular mental state (and associated physical acts) of the spouses.  What if they lived in the same house but drove a single car?  What if they drove separate cars but only had one (joint) bank account?  What if they typically had different beds but shared a room when the in-laws were over?  Those would be incredibly tough calls.  And so I'd lean in favor of trying to draw a bright-line, predictable rule.  Maybe even one that focused on whether the couple was, indeed, sharing the same roof.  (Though I'd probably still want to separate out a spouse who lived in a guest house or garage or cabana or something like that, even if these things were on the same property or in fact shared the "same" roof.)

Why would I want to do that?  Because that's the best rule that I could come up with that made sense.  That people could plan around, that avoided transaction costs and uncertainty, that reflected the reality of modern circumstances, etc.

That's indeed the result -- very nearly, anyway -- that today's opinion articulates.  Minus the caveats I've articulated.

So why am I so disappointed with the opinion?

Because the way the California Supreme Court gets there is, in my view, terrible.

According to the Court, what it means to be "separate and apart" is fairly clear.  The language has a facially "plain meaning".  The Legislature had a keen sense of what that meant (in 1870!) and there are lots of cases (in the Court of Appeal!) that explain that it means living in an entirely separate house.  That may potentially "lead to unjust, harsh results, and is [] against current public policy considerations," the Court says, but that's allegedly problem for the Legislature, it says.  Not our problem.

Hogwash.

I'd expect to see a similar form of analysis -- spread out over 25 pages -- from a moribund, hidebound state supreme court in, say, 1950.  But to see it articulated by the California Supreme Court in 2015 is depressing.

The statute's not crystal clear.  What it means to be "living" a life "separate and apart" from one's spouse is hardly capable of one simple meaning.  As the California Supreme Court expressly admits (citing, amongst other sources, Black's Law Dictionary).  Moreover, even if what it means to be "separate and apart" was clear 150 years ago, in 1870, the world has materially changed since then.  The universe has changed.  In the old days, women were nearly entirely subordinate to their spouses.  In lots of situations, they couldn't even sue or be sued in their own name.  Not only has the legal status of spouses materially changed, but so has the entire world surrounding this relationship.  Families have changed.  Relationships have changed.  The nature of housing has changed.  Why one gets (and stays) married has changed.

For better or worse, in the modern era, people find reasons to stay "together" with their spouses while living separate lives.  Often for the (perceived) benefit of their children.  Just take a simple glance at a variety of celebrities to see what I mean.  Ben Affleck and Jennifer Gardner, for example -- a couple so close that they have (in common parlance) but a single name ("Benifer") -- are separated but still live on the same property.  Gwen Paltrow and Chris Martin did the same thing.  Legions of other couples as well.  There's no doubt that there are reasons for this arrangement.  Even for spouses with practically infinite finances and flexibility.

And what's true for the rich and famous may be equally, if not more, true for the poor and overlooked.  A spouse might want to move out of the family home but can't afford it.  Maybe the family needs both incomes to pay the mortgage, lest the entire couple -- and their kids -- be thrown out on the street.  The Court says that's not its problem.  Too bad.  Even if you live entirely separate lives to the nth degree, if you live in the same household, even entirely out of necessity, you're stuck with a legal rule expressly designed for couples who have chosen to comingle their lives.  Tough for you.

Look, if the statute was crystal clear, maybe I'd be compelled to accept such a result.  But it's not.  Not by a longshot.  So public policy considerations matter.  To me, anyway.  Especially in a situation in which a statute was enacted in a universe radically dissimilar to the one we have today.

There's a reason we have courts.  There's a reason we have the common law.  There's a reason that courts can effectively take into account societal changes.  There's a reason why the legal world in which we live in 2015 isn't identical to the legal world in which we lived in 1950.  Or 1870.

But the California Supreme Court says:  Don't blame us.  Talk to the Legislature.

That response rings hollow to me.  Particularly in a case like this one.

It's depressing enough that today's opinion reads like an opinion of, oh, I don't know, a South Carolina court of appeal in 1950.  But it's even more depressing that this opinion is written by the Chief Justice.

This is not what you would read from, say, a Roger Traynor.  For good reason.

And I'd have expected even more from our current Chief Justice.  Which is perhaps why my reaction to today's opinion is so strong.

Justice Liu, joined by Justice Werdegar, writes a concurrence that reaches the same result as the majority but gets there in a way that's much more in line with my own views of legal analysis.  Especially in the modern era on a topic like this one.

I'll say this:  As I read the majority opinion, I kept thinking to myself:  "Who could possibly be writing this thing?"  The manner of analysis was so hidebound, so crimped, so constrained, it didn't read to me like any of the opinions on similar topics by any of the current justices on the Court.  Sure, I could see a Scalia or a Thomas writing the thing -- as long as you added lots of additional insults and vitriol.  But I couldn't think of any member of the California Supreme Court who would really go about analyzing this type of issue in such a limited,.deferential, "oh-there's-really-nothing-we-can-do" sort of way.

So you can imagine my horror when I reached the end of the opinion and discovered its author.

The worst part of this bad opinion, in my view, are the pages of pages and pages of discussion of nonbinding Court of Appeal precedent from decades ago.  Yeah.  That's what really matters.  It's not the consequences of today's decision on children or their parents -- consequences that get a back-of-the-hand treatment in a single paragraph akin to a "What, Me, Worry?" smile.  Nope.  What we really need to be talking about is how a precedent-constrained panel of three judges thought half a century ago about the nature of what it means for a couple to have separate lives.  In a world substantially dissimilar to the one we have now.

You're not living a common life just because you live in the same real estate parcel.  To pretend otherwise -- or that this issue is one solely for the Legislature, not for the wisdom of common law statutory interpretation -- is not what I'd hope to see from the California Supreme Court.

But it's what I saw today.

Z.V. v. County of Riverside (Cal. Ct. App. - July 16, 2015)

A social worker working for the County of Riverside allegedly sexually assaults Z.V. while he's in his care (albeit slightly after the end of the work day).  The social worker is surely liable for the alleged offense.  What about the County of Riverside?

The California Supreme Court has held that when a police officer sexually assaults someone during his shift, his employer is liable.  But the Court hasn't been excited to extend that precedent, and has subsequently held that a hospital isn't liable for the sexual molestation of a patient by an ultrasound technician and a county isn't liable for the sexual harassment of a county jailer by another jailer.

Which precedent applies?

The trial court thought that the "police officer" case was less on point than the other cases, so granted Riverside County summary judgment.  The Court of Appeal affirms.

The best case for the plaintiff was probably a Ninth Circuit case, applying California law, that held that the United States was liable for the sexual assault by an immigration officer on an applicant for asylum.  Surely the degree of control by a social worker is greater than that, no?

Yes, quite frankly.  It is.

But Justice Bedsworth savages the Ninth Circuit's opinion.  Going line by line to demonstrate that the Ninth Circuit was completely erroneous in its application of California law.

The relevant Ninth Circuit opinion, by the way, was written by Judge Noonan.  With a dissent (in relevant part) by Judge Bybee.

I think that Justice Bedsworth's analysis is even better than Judge Bybee's dissent.  Which is saying something.

The Court of Appeal's opinion is a great example of precedential analysis.  I recommend it to anyone who's looking for a primer on how to properly analyze, distinguish, and argue from competing lines of precedent.

As a result of today's opinion, Z.V. gets nothing.  Nada.  Zip.  Though at least Justice Bedsworth doesn't make him pay costs.  (Which assuredly wouldn't have been recoverable, or enforced, in any event.)

By contrast, in the Ninth Circuit case, guess how much the plaintiffs got there?  I checked it out.  $1.2 million.  Plus (undoubtedly) attorney's fees and whole bunch of other stuff.

It makes a difference where you file a lawsuit, eh?  As well as what panel you get.

Torres v. Goddard (9th Cir. - July 16, 2015)

This panel consists of Judges Reinhardt, Kozinski, and Bybee.  That's a lot of intellectual firepower.

The case arises out of the seizure of thousands of Western Union wire transfers in Arizona.  Between 2001 and 2006, Arizona officials apparently seized every single wire transfer from certain geographic locations to Arizona that exceeded a certain amount (typically, $500 to $2000) during a particular time period.  If, after the seizure, you wanted your money, you had to call a toll-free number and convince the government over the phone that your wire transfer was legitimate.  And if, in its unilateral discretion, they felt like giving your money back to you, they did; otherwise they figured you were engaged in human trafficking and kept your money (and subsequently sought to forfeit it).

It's a pretty stunning seizure.  I had no idea it went down.  The question for the panel was whether there's absolute immunity for the public officers who ordered it.  The Ninth Circuit holds that such immunity exists for the most part (in preparing the seizures), but not in actually executing them.  For that, the district court will have to figure out if there's qualified immunity.

The panel heard the oral argument at UNLV, which I'm certain was fun (and informative) for all those involved.  I'm not exactly sure why the resulting (unanimous) 26-page opinion took over a year and a half to create; that's an awfully long time.

But I'm sure that Judge Kozinski would say you can't rush quality.

Or even nudge it along a little.

Velasquez v. City of Long Beach (9th Cir. - July 15, 2015)

Normally you wouldn't reassign the case to a different judge on remand just because the district court judge erroneously granted a judgment as a matter of law on various counts in an excessive force case.

But the district judge here is Manuel Real.

So the Ninth Circuit does.

People v. James (Cal. Ct. App. - July 14, 2015)

There's lots of evidence that the defendant was acting crazy at the time of the offense.  Indeed, that he was crazy.  He was behaving weirdly at a senior housing complex in Oakland, and was trying to climb the exterior of the building as well as running around the parking lot "crashing his head into cars and garbage cans."  He saw a random woman and asked her to give him a kiss, and then grabbed her and bit her multiple times.  When the police came, he was mumbling and running around between two cars.  The police used a taser on him several times, and when the officer threatened to use the taser again, the defendant said "Tase me!"  Defendant was eventually handcuffed after a struggle, and went to trial for his crimes.

This would well have been the result of psychosis.  Whether drug-induced or not; the defendant has a history of polysubstance abuse, but he was also shot in the head and had a traumatic brain injury when he was 17.

Whatever.  The jury found him guilty, but then not guilty by reason of insanity.

That verdict makes sense.  I understand it.  The guy was apparently so out of it that he couldn't tell right from wrong.  Or at least that's what the jury concluded.

That part I get.

But that's not what today's opinion is about.  The Court of Appeal holds that the conviction has to be reversed because the jury wasn't instructed that it's a substantive defense to criminality that at the time of the offense you were unconscious, and that there was substantial evidence here that the defendant was unconscious.

Whoa.  That's a little weird.

Justice Ruvolo's opinion does a very good job explaining the evolution of the jurisprudence of "unconsciousness" and its interaction with sanity determinations.  What we normally think of when we talk about someone being "unconscious" isn't necessarily the same as what we mean by that term in criminal law.

Okay.  I get it.  We're using this term in a broader sense.

But even after reading the entire opinion a couple of times, I'm still not at all sure of the dividing line between "unconscious" and "insane" under the Court of Appeal's approach.

I get that when you're sleepwalking, you're "unconscious" even though you might be moving and appear to have voluntary control.  Ditto for when you're in the midst of an epileptic seizure.  Or when you've had a severe blow to the head.  You might look like you're in control, but you're not.

But for people with, say, paranoid schizophrenia, or with the kind of mental disorder that defendant her might have had, I'm not sure how one tells the difference between "just" being insane -- a status that means you're found guilty but are placed in a hospital -- and being "unconscious" and hence are entirely relieved of all punishment/treatment.

It seems to me that the Court of Appeal is saying something like when you're "really" insane, you may have no voluntary/volitional control over your actions.  Or at least no "rational" control.  I get that.  It resonates with me.  But I'm not sure that I then understand what the difference is between being insane and being unconscious.  If you're so "insane" that the "crazy" part of your brain is the one that's taking control, then it seems like you're always (or nearly always) "unconscious" too, at least under the Court of Appeal's interpretation.  Or, at a minimum, I'm not at all sure how a jury is supposed to determine the difference -- and I feel confident that whatever jury instructions we try to come up for this one won't explain things well at all, especially since the Court of Appeal can't seem to explain the difference well even to (relatively) sophisticated non-laypeople like me.

Maybe there's a clear dividing line here.  I just don't see it.  Justice Ruvolo's intuition doesn't seem entirely wrong.  I'm just not sure were "insane" ends and "unconsciousness" begins.  At all.   Despite the fact that there's tons that's riding on that distinction; i.e., being found guilty but insane versus not being found guilty at all.

I understand that this is a tough issue.  I understand that concepts are evolving.  I understand that there might be some potential overlap.  I understand that there might be a serious problem here.

I'm just not certain precisely where the Court of Appeal is drawing the line.  Or whether the resulting line makes sense.

DKN Holdings, Inc. v. Faerber (Cal. Supreme Ct. - July 13, 2015)

Today's opinion from the California Supreme Court sounds exactly like what I would say to one of my first-year law students who was confused about res judicata.

Justice Corrigan's opinion is careful, patient and slow.  She essentially says:  "Look, I understand that this stuff is confusing.  The terms are in Latin, and sometimes even smart people (e.g., us) use the phrase 'res judicata' to describe two different things.  So I can understand why you might well find this difficult.  But you're allowed to sue two different parties in two different lawsuits.  The second suit isn't barred by what's properly called 'claim preclusion'.  Even if there's joint and several liability.  Even if you could potentially sue them both in a single lawsuit.  It's just not required.  Your call whether you want to file one lawsuit or two."

There's a reason today's opinion is unanimous.  Because that's clearly a correct statement of the law.

Even if the trial court, and the Court of Appeal, below got it wrong.  Like many, many law students before them.

California Dep't of Corr. & Rehab. v. CSPB (Cal. Ct. App. - July 10, 2015)

It's not only criminals who get benefits from technicalities:

"Appellant Joseph McCauley (McCauley) was promoted to the position of Correctional Sergeant at Avenal State Prison by his employer, the California Department of Corrections and Rehabilitation (CDCR). The new position began on December 2, 2008, and was subject to a 12-month probationary period before it became permanent. On December 1, 2009, CDCR served a notice of rejection on McCauley to remove him from the position of Correctional Sergeant effective on December 8, 2009. On December 2, 2009, another document was served on McCauley, this one purporting to extend his probationary period until December 8, 2009. McCauley maintained that CDCR’s notice of rejection and other papers were invalid due to failure to comply with certain timing and notice requirements relating directly to the duration of the probationary period. . . .

We hold that McCauley is correct that the notice of rejection was fatally deficient under applicable law because the effective date of the rejection (i.e., Dec. 8, 2009) was after the completion of his probationary period."

Olive v. CIR (9th Cir. - July 9, 2015)

You might well be able to do something under state law.  For example:  Sell marijuana.

But you can't beat the Tax Man.

The Ninth Circuit holds this morning that if you're a medical marijuana dispensary, you can't deduct any business expenses.  That's right:  any.  Not even the ones you legitimately incurred.

Did Congress have this result in mind when it passed the relevant tax statute?  Perhaps not.  But that statute is nonetheless clear.  It says that a taxpayer can't deduct any expenses if the relevant "trade or business . . . consists of trafficking in controlled substances . . . prohibited by Federal law."

For better or worse, that's on point to what a marijuana dispensary does.  Because, as a reminder, marijuana remains illegal -- e.g., a controlled substance -- under federal law.

Martin Olive has a couple of legal arguments as to why the statute shouldn't apply.  But as the panel correctly holds, they're not persuasive.  The statute means what it says.  You can still operate a marijuana dispensary if you want.  But you're going to have to pay taxes on your gross profit, not your net.

Which isn't going to be very much fun.

Altafulla v. Ervin (Cal. Ct. App. - July 7, 2015)

It's not that I don't like published opinions.  I do.  A lot.  The more reasoned precedent the better, I figure.

It's also not like this opinion isn't worthy of publication.  It is.  Justice Benke says a lot in her opinion that's worth saying.  And worth letting everyone know.  Like the fact that an email campaign against a domestic partner, especially when combined with an apparent attempt to traumatize her children, can properly give rise to a domestic violence protective order.  As well as the fact that it's not necessarily a valid defense to such an order to say that the things you were saying as part of those campaigns were true.

All that's worth mentioning.

The problem is this:  There's a lot -- and I mean, a lot -- of detail in the opinion.

Now, normally, that's a good thing.  But here, when I say "detail", I also mean "dirt".  We learn from this published opinion that the victim here essentially admitted to having an affair.  We learn who the affair was probably with:  "someone associated with a client of her employer."  We learn not only that there appear to be pictures of the affair and a surveillance report, but also that the affair may have involved "oral copulation".  We learn that when the perpetrator described in excruciating detail what a "blowjob" entailed to the victim's daughters -- one of whom was nine years old -- and the perpetrator's belief that there was "a risk they could contract sexually transmitted diseases from towels their mother might use," the elder daughter was so traumatized that she required inpatient care at a mental health facility.  We even learn that following one of the trips she took with her lover, the victim experienced a yeast infection.

There's a reason, of course, that Justice Benke includes all of these details in the opinion.  They provide not only color, but they're relevant to the legal claims at issue in the appeal.

So I'm not critiquing their inclusion.

But the thing is:  the opinion uses the victim's real name.  Not her initials.  Not "Carolina A." or something like that.  Her full, complete name.

And it's not a common one.  There's exactly one person in the entire United States with that name.  And the fact that we know that she lives in San Diego -- and all the other details about her in the opinion -- make it crystal clear who she is.

Which means we know not only all the gory details about her personal life that are in the opinion, but can take a gander at her Twitter posts, find out where she works from her LinkedIn page, and even check out the stuff she likes on Pinterest.

Remember:  We're talking about the victim here.

It's bad enough to include her name in an "unpublished" -- but still available -- opinion.  But to include it in a published opinion, for all posterity?  I think that's bad form.  She was victimized enough by having her former domestic partner e-mail her employer and their mutual friends and letting them all know the sordid details.  If there's anything she doesn't need, I imagine, it's to have those same details disseminated to the remainder of the universe.

Now, admittedly, it doesn't appear that the victim ever attempted to get the matter sealed, or to truncate her name.  But she also didn't necessarily know that the opinion would be (1) published, and (2) feel the need to disclose every dirty little secret that might potentially be relevant to the disposition.  It also bears mention that it wasn't the victim who requested publication:  it was the Association of Certified Family Law Specialists.

Particularly given what gave rise to the underlying protective order -- e.g., the public dissemination of private facts about a victim -- I think that Justice Benke's opinion could be improved with a simple change.  Get rid of the full name.  Leave some tiny shred of anonymity for cases like this.  And make sure that when future employers Google the victim's name, the first thing they see isn't an opinion that contains intimate details like her affair, her yeast infection, and her particular (alleged) sexual practices.

P.S. - FWIW, I don't feel the same about the perpetrator and appellant, John Ervin. Particularly given the number of lawsuits to which he's a party (feel free to do an internet search for a sample of those), I think his anonymity is pretty much out the window at this point.

U.S. ex rel. Hartpence v. Kinetic Concepts (9th Cir. - July 7, 2015)

"Wrong!"

That's what an en banc court of the Ninth Circuit unanimously says today about a prior circuit precedent.

The prior case, Wang v. FMC Corp., held that a qui tam relator had to have played a role in a prior public disclosure of fraud before he could file a lawsuit under the False Claims Act.  But the Ninth Circuit now says that this decision was wrong.  Wrongly decided then.  Wrong rule now.  Overruled.

"We hold today that there are two, and only two, requirements in order for a whistleblower to be an 'original source' who may recover under the False Claims Act: (1) Before filing his action, the whistleblower must voluntarily inform the government of the facts which underlie the allegations of his complaint; and (2) he must have direct and independent knowledge of the allegations underlying his complaint. Abrogating our earlier precedent, we conclude that it does not matter whether he also played a role in the public disclosure of the allegations that are part of his suit."

The prior opinion was authored by Judge Poole, and joined by Judges Betty Fletcher and T.G. Nelson. Serendipitously, one of the members of the en banc panel is Judge William Fletcher.  So this is one of those rare occasions when a judge gets to tell everyone, for posterity, that his mother was wrong.

One other, tiny, error.  Judge Bea's en banc opinion says that "Wang has been the law of this circuit for 23 years."  Not quite.  It's actually 22 years, since Wang was decided in September of 1992.

But I'll go ahead and let the court round.  Good enough for government work.

Meridian Joint School Dist. No. 2 v. D.A. (9th Cir. - July 6, 2015)

Here's a weird one. At least to an outsider like me.

Among other things, the Ninth Circuit vacates and injunction that prohibited a high school student from graduating.  That part doesn't seem strange.  Judge Callahan's opinion on that point seems spot on to me.

The somewhat bizarre thing is that the injunction was sought by the kid's parents.  They wanted the Ninth Circuit to affirm the injunction, even though their child had completed all of the requirements for graduation and he was now three years out of high school.

Reading an earlier portion of the opinion, which recounts that the (then-) child had set fire to a room of the family home when he was a freshman, you might think that the parents were perhaps trying to get back at the kid.

Nope.  They just wanted an injunction so the kid wouldn't graduate high school so the school district would have to give him additional services as a disabled child.

No dice, however.  Injunction gets lifted.  And the parents (and their counsel) don't get paid the vast majority of the attorney's fees they've run up in this incredibly long-running IDEA saga.

People v. Vukodinovich (Cal. Ct. App. - June 29, 2015)

It's the day before July 4.  So everyone's on holiday.  (Except for most lawyers, of course.)  Which means no new opinions.

But as we head into the holiday, let's just send a simple message.  You'd think that you wouldn't have to remind anyone of this.  But apparently it's worth making clear:

If you're a 73-year old bus driver, and on your bus is a disabled, partially blind person with an IQ of 37 and a mental age of three or four, don't have repeatedly have sex with her.  Or even do it once.

Otherwise you'll spend 14 years in prison.  Which, since you're 73, is likely for the rest of your life.

Happy Fourth of July.

Valley Crest Landscape Development, inc. v. Mission Pools (Cal. Ct. App. - July 2, 2015)

How much do you think this fact pattern settles for:

"The St. Regis is a resort facility located in Dana Point and is owned by CPH Monarch Hotel, LLC (CPH). . . . On September 15, 2007, Epp dived into the shallow end of one the swimming pools at the St. Regis. Epp, who was intoxicated at the time, seriously injured his spine and was rendered a quadriplegic. . . .

[Plaintiffs] identified the following defects as allegedly contributing to their injuries: (1) “[t]he vertical tile depth markers were partially submerged, making them illegible”; (2) “faded deck top depth markers”; (3) “[p]oor contrast on the signs containing ‘No Diving’ warning”; (4) “[p]oor location of signs”; (5) “[l]ack of fence between pools so users were not directed to entrance near ‘No Diving’ sign”; (6) “[f]ailure of hotel to enforce its rule directing users to not use pool after alcohol intake”; and (7) use of colored (French gray) plaster for the swimming pool."

The injuries are, of course, severe.  From what the plaintiffs have alleged, does this sound like a strong case or a weak case?  A $20 million case?  $20,000?  Some (particular) number in between?

The case settles for $4.5 million.

Based upon the allegations, that's not the number I would have guessed.

Santos v. Brown (Cal. Ct. App. - July 1, 2015)

The Court of Appeal publishes this opinion today.  And it's relentless.  Relentless.  Seriously. Relentless.

Justice Hull lets you know at the very outset that we're not just talking about any defendant.  He lets you know in the very first sentence not only who we're talking about and what he did, but also why this is a high-profile case.  Saying:  "Esteban Nunez -- the son of Fabian Nunez, the former Speaker of the California State Assembly -- aided in the killing of Luis Santos, the only son of Frederico and Kathy Santos, during a knife attack on October 4, 2008."

Now, that doesn't necessarily tell you if the Court of Appeal is going to go hard or soft on this one.  Maybe they're going to take a good look at the case and have sympathy for a troubled young man, despite the fact that we're usually pretty harsh on criminal defendants.

But you quickly get a sense that that's not necessarily how things are going to go down.  Because then Justice Hull tells the reader -- in the very next sentences -- why Mr. Nunez was convicted:

"The attack, initiated by Esteban Nunez and his acquaintances on Santos and on other young men, none of whom were armed, took place near the campus of San Diego State University. Among other acts of violence, one of Esteban Nunez’s cohorts stabbed Luis Santos in the chest severing an artery in his heart after which Luis Santos almost immediately bled to death. During the fight Esteban Nunez stabbed another young man in the abdomen and in the back and stabbed a third young man in the shoulder. We set forth the facts surrounding the knife attack by Esteban Nunez and the others in more detail in a moment."

Well, now.  That's not very good, is it?  Maybe the Court of Appeal's not going to look so favorably on this young man after all.  Sounds like his conviction's going to be affirmed, right?

But this case isn't about his conviction.  It's about something else.  Because Mr. Nunez pled guilty to voluntary manslaughter, and "[i]n June 2010, he was sentenced to serve 16 years in prison."

So what's it about?  You may perhaps recall the details.  If not, Justice Hull reminds you of just what transpired thereafter:

"On January 2, 2011, his last day in office as Governor of California, Arnold Schwarzenegger exercised his executive clemency power . . . by commuting (reducing) the prison sentence of Esteban Nunez from 16 years to seven years."

Then Justice Hull adds a paragraph break.  After noting the "midnight" nature of the clemency, he adds:

"The commutation came as a complete surprise to the crime victims and the prosecuting district attorney."

Hmm.  I wonder how Justice Hull feels about Gov. Schwarzenegger's decision?

One need not speculate.  Justice Hull tells the reader exactly what he thinks:  "We are compelled to conclude that, while Schwarzenegger’s conduct could be seen as deserving of censure and grossly unjust, it was not illegal. Marsy’s Law [which requires advance notification to victims parole and related proceedings], despite its obviously expansive protection of victims’ rights does not restrict the executive’s clemency powers under California Constitution, article V, section 8, subdivision (a) or the clemency statutes, and we must affirm the judgment."

"Deserving of censure" and "grossly unjust".  Tell us what you really think, Justice Hull.

The Governator isn't the only one who's at the receiving end of the Court of Appeal's ire.  Mr. Nunez doesn't get treated with kid gloves either.  A brief sample of the Court of Appeal's opinion is more than enough to let you know what the justices think of him as well:

"Esteban Nunez’s self-serving letter to the court asserted he felt remorse, not for what he did, but for what “happened.” He blamed his codefendants for having “negative influences” on him. He claimed he “always intended to take responsibility for my actions” (despite fleeing the scene and destroying evidence) and was willing to turn himself in when the arrest warrant issued, but the district attorney was not interested. He said, “the justice system has its faults,” but “I still have hope the truth will be seen and heard. I guess I’m asking that you pay attention to the facts on this case, for the facts speak for themselves.”

Contrary to the content and tone of Nunez’s letter, the probation report states Nunez lied when first contacted by police, was “never cooperative,” and after his arrest and release sent a text message to a codefendant stating, 'Gangster rap made us do it lol.'"

Dude.  After you've stabbed someone, and someone's been killed, it's probably not a good idea to send a mocking text message to your co-defendant.  That tends to make you look, oh, I don't know:  kinda bad.

Oh, and lest you think that the Court of Appeal is only displeased about the result, they've got some words about the process as well.  Saying:

"On January 2, 2011, Schwarzenegger’s last day as Governor, he announced in an executive order signed on December 31, 2010, he had commuted Nunez’s sentence from 16 years to seven years. Back-room dealings were apparent. Esteban had filed a notice of appeal in the criminal case but signed a notice of abandonment and request for dismissal of appeal on December 6, 2010 -- before the grant of clemency. Nunez’s attorney signed the abandonment and dismissal request the day after the grant of clemency and filed it later, on January 20, 2011. Neither the victims nor the district attorney were notified that Schwarzenegger was considering commuting Nunez’s sentence."

In short, Mr. Nunez (and Gov. Schwarzenegger) essentially win the appeal, but get tarred in the process.  Not that they perhaps care.  But tarred they are.  Mercilessly.

The Court of Appeal's opinion is unanimous.  Both Justice Raye and Justice Murray, however, also write concurring opinions.  The last paragraph of Justice Murray's concurrence begins:  "As reprehensible as the Governor’s action in this instance might have been . . . ."

Lest there be any doubt from Justice Hull's opinion what the panel thinks.

People v. DeHoyos (Cal. Ct. App. - July 1, 2015)

This morning's opinion reminds us that methamphetamine users are not necessarily the brightest people in the universe.  Even if they live in San Diego.  Witness:

"San Diego Police Officers Andres Ruiz and Tyler Cockrell approached DeGraff while DeGraff was outside in front of his home cleaning his car. At the time, DeGraff's home was known to be a location where narcotics sales occurred. DeGraff agreed to speak with Ruiz. Ruiz asked him if he had ever been arrested and he stated he had. Ruiz asked him whether he was on probation or parole and he stated he was on probation. Ruiz asked whether he could search him and he responded, "Yes. I'm on probation."

Officer Ruiz searched DeGraff and found a folded paper containing 1.72 grams of methamphetamine in his back right pocket. Ruiz started handcuffing him and he asked why he was being arrested. When Ruiz told him he was being arrested for the methamphetamine in his pocket, he hung his head and remarked, "Oh, f--k. I didn't know that was there. I forgot. It's not mine." . . .

As Officer Ruiz was arresting DeGraff, DeGraff yelled to his girlfriend DeHoyos. DeHoyos came outside and Officer Cockrell contacted her. He asked her whether she had anything illegal on her and whether he could search her. She replied, "Yeah. I don't have anything on me." He searched her and found a baggie containing .50 grams of methamphetamine in her right front pocket. He then arrested her and placed her in the patrol car. . . .

After Officer Cockrell arrested DeHoyos, he asked DeGraff for permission to search his house. DeGraff verbally consented to the search. He also signed a written consent form after he had an opportunity to read the form and Cockrell read it to him. . . . Officer Ruiz searched DeGraff's home. He found a baggie containing 19.2 grams of methamphetamine in a bedroom being used as an office."

So let's summarize.  Mr. DeGraff (1) consented to a search, and (2) forgot he was holding.  Neither decision was bright.  Then his girlfriend, Ms. DeHoyos, (1) comes out of her home while the police are there, (2) in possession of methamphetamine, and (3) consents to a search.  Not too bright either.

Then Mr. DeGraff consents to a search of his home.  In which there's even more methamphetamine.

Oh, one last thing.  Mr. DeGraff tells the police officer he's on probation, and hence is authorized to search him.  But he's actually not.

How you can forget whether you're on probation or not is beyond me.

Unless you're using way, way too much methamphetamine.