Thursday, October 29, 2015

Donorovich-Odonnell v. Harris (Cal. Ct. App. - Oct. 29, 2015)

I love it when the Court of Appeal accurately summarizes the case in the first page or so.

As Justice McDonald does here.

It's an opinion of substantial importance.  On a topic about which many people definitely feel strongly.

So even though the whole opinion is worth reading, hopefully the first page will incentivize people to pour through the whole thing:  (I've deleted the citations for easier reading)

"Most states, including California, do not classify suicide or attempted suicide as a crime. Most states, however, including California, impose criminal liability on a person aiding and abetting suicide. Penal Code section 401, in effect since 1873, provides: "Every person who deliberately aids, or advises, or encourages another to commit suicide, is guilty of a felony." The crime is punishable by a state prison term of 16 months, two years, or three years, and a fine of up to $10,000.

On appeal, plaintiffs contend section 401 is inapplicable to physician aid-in-dying because prescribing a lethal dose of drugs a patient may or may not have filled or take is not direct participation in suicide and, in any event, the legislative history of section 401 shows the Legislature never intended that section 401 apply to a person furnishing the means of suicide. Alternatively, plaintiffs contend section 401 as applied to physician aid-in-dying violates the state constitutional right to autonomy privacy.

On October 5, 2015, Governor Jerry Brown signed the End of Life Option Act, which authorizes a terminally ill patient with the capacity to make medical decisions to request a prescription for a lethal dose of drugs, insulates a prescribing physician from criminal liability, and sets forth rigorous procedures and safeguards to protect against abuse. The parties agree Assembly Bill 15 does not render the appeal moot because it will likely not become effective in time to benefit plaintiffs, particularly Christy Lynne Donorovich Odonnell, given her life expectancy, and the measure's future is uncertain because opponents have filed paperwork with the Attorney General to challenge it by referendum on the state ballot in 2016.

We have great compassion for plaintiffs, but we conclude their statutory and constitutional arguments lack merit. We agree with defendants that physician aid-in-dying, and attendant procedures and safeguards against abuse, are matters for the Legislature. We affirm the judgment for defendants entered after their demurrers to the complaint were sustained."

There's lots more human detail in the opinion.  For example, here's a brief description of one of the plaintiffs:  "Donorovich-Odonnell, who resides in Santa Clarita, suffers from stage IV adenocarcinoma of the left lung, which has metastasized to her brain, liver, spine, and rib. At the time of the complaint's filing in May 2015, her estimated life expectancy was less than six months. She is morphine intolerant and cannot benefit from many of the most common and effective forms of pain management."  California tells her to suck it up.  More accurately, it tells her that she can kill herself if she wants to, but she can't get any help, and she has to do it in a way that's prolonged (e.g., starve herself), painful (e.g., slit her wrists), or ugly (e.g., blow her brains out).

One can have different perspectives on the resulting issues.  But there should be no doubt that this is a vital question.  For Ms. Donorovich-Odonnell as well as for everyone else.

But, as of now, at least, terminally ill patients like Ms. Donorovich-Odonnell get no help at all from the California judiciary.

Wednesday, October 28, 2015

Dhawan v. Biring (Cal. Ct. App. - Oct. 28, 2015)

This is why (except in personal injury actions) you ask for a specific amount of damages in your complaint.  Because if you don't, and even if you later serve a statement of damages, the default judgment that you will obtain will be void.  And can be vacated.

Even seven years later.

Tuesday, October 27, 2015

People v. White (Cal. Ct. App. - Oct. 27, 2015)

I agree with Justice Yegan:

"Hillary Travon White has a strong arm. He threw a metal showerhead at reinforced glass with sufficient force to shatter the glass, causing particles to hit peace officers on the other side As we shall explain, this conduct may constitute assault by force likely to produce great bodily injury. . . .

On December 3, 2013, appellant was incarcerated at a CYA facility and got into a fist fight with another inmate. Appellant refused to stop fighting and was "pepper sprayed" by CYA Correctional Counselor Elmore. Angry, appellant called Elmore a "bitch" because he was the only one "pepper sprayed."

Appellant was permitted to wash off in a shower that had a window facing the control desk where Elmore and Parole Agent Zavala were seated. The desk was six feet away from the shower window, which was a multi-paned partition constructed of wire-reinforced glass. Some glass panes were missing.

Appellant broke off the metal showerhead and threw it in the direction of the window. Elmore heard a "loud thud and shattering glass." The showerhead bounced back but broke a window pane, spraying glass particles on Elmore and the desk countertop. Elmore felt a sliver of glass hit her eye, alerted her coworkers, and went to the restroom to treat her eye.

Appellant moved to within one or two feet from the window, picked up the showerhead, and threw it again. Zavala heard "another loud bang" and felt a shower of glass particles hit her. A piece of glass cut her lip. The showerhead penetrated the window and landed near the desk. . . .

Appellant argues that a reasonable person would assume the window was unbreakable because it was wire-reinforced glass. He amplifies the argument stating that if he wanted to harm the victims, he could have thrown the showerhead through a window pane that had no glass. That appellant had a poor aim or that the window had a safety feature are not defenses. The assault charges did not require a specific intent to injure the victims or a substantial certainty that an application of physical force will result. (People v. Williams, supra, 26 Cal.4th at p. 788.)

Appellant also argues that he could not be convicted based on facts he did not personally know, i.e., that reinforced glass could be broken. But that is not the test. (Ibid.) The test is whether a reasonable person would reasonably believe that a metal object, if thrown with great force, would directly and probably injure a person on the other side of the window. (Ibid.) "[A] defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery." (Id., at p. 788, fn 3.)

Shooting a firearm at a victim who is protected by bulletproof glass is an assault. (People v. Valdez (1985) 175 Cal.App.3d 103, 108.) This is akin to what happened here."

I'll add that it's not just assault.  It's assault that's likely to produce great bodily injury.

Even if the glass is reinforced, and even if the other guy's wearing a bulletproof vest.

Monday, October 26, 2015

Crittenden v. Chappell (9th Cir. - Oct. 26, 2015)

It's an AEDPA death penalty habeas case.  The question is whether the prosecutor improperly used a peremptory challenge to dismiss the only African-American in the juror pool.

Judge Fisher writes the majority opinion.  Judge McKeown dissents.  Can you guess the outcome?

Conviction reversed.

It'll be a struggle to read the entire 65-page (single-spaced) opinion and dissent.  But it's worth it.

That said, I'd be extraordinarily surprised were this the end of the story.  There will be, I strongly suspect, an en banc call.  And, if it prevails, a split opinion (IMHO) on the merits.  (Depending, of course, on the draw.)

And review by the Supreme Court is distinctly possible as well.  Notwithstanding the fact that this is an exceptionally fact-specific case.

Stay tuned.  But in the meantime, a great discussion by both sides.  Of a very important issue.

Friday, October 23, 2015

In Re ChinaCast Educ. Corp. Sec. Lit. (9th Cir. - Oct. 23, 2015)

China's a great place to invest.  Who could possibly lose money in such a market?

Well . . . .

"ChinaCast, founded in 1999, is a forprofit postsecondary education and e-learning services provider that sells distance learning and “multimedia education content” over the Internet and from three campuses in China. . . . ChinaCast boasted a market capitalization topping $200 million and was listed on the NASDAQ Global Select Market. ChinaCast’s stock offerings in the United States in 2008 and 2009 generated $48 million in net proceeds. . . .

[T]he complaint alleges, ChinaCast’s founder and CEO, Ron Chan Tze Ngon (“Chan”), looted the company’s coffers, including proceeds from the U.S. stock offerings. From June 2011 through April 2012, Chan “transferred” $120 million of corporate assets to outside accounts that were controlled by him and his allies. In addition, Chan permitted a company vice president to move $5.6 million in company funds to his son; “unlawfully transferred control” of two of ChinaCast’s private colleges outside the company; and pledged $37 million in company assets to secure third-party loans unrelated to ChinaCast’s business. These actions brought ChinaCast to financial ruin. The company cannot even afford its legal bills, according to its lawyers, who submitted a bare-bones brief on appeal and stated that “ChinaCast now unfortunately lacks the funds necessary to mount with full vigor the defense of this appeal.”

In the midst of this fraud on multiple fronts, Chan and ChinaCast Chief Financial Officer Antonio Sena participated in a series of earnings calls and other communication with investors. During these calls, neither official disclosed the fraudulent activities taking place; instead, Chan emphasized the company’s financial health and stability. For example, in a press release and conference call in fall 2011, Chan reassured investors that “no questions or concern[s] have ever been raised by the company’s auditors or audit committee about our cash balances.” Throughout 2011, Chan signed SEC filings on behalf of ChinaCast and never disclosed the $120 million in transfers and other fraudulent activities afoot."

Not good.

Thursday, October 22, 2015

Beverley Hills USD v. Los Angeles County MTA (Cal. Ct. App. - Oct. 22, 2015)

"What?!  You're putting the subway directly under me?!  Under Beverley Hills High School?!  This shall not do!"

So the Beverley Hills Unified School District sues.

But the trial court denies the petition.  And the Court of Appeal affirms.

Sorry.  Even rich people (and their kids) occasionally have to get on the subway.

Or at least have it be beneath them.

Najera v. Shiomoto (Cal. Ct. App. - Oct. 13, 2015)

Here's how you get your license back even after a DUI with a .19 blood alcohol content.

I think I'd have decided the case the other way.  The guy was drunk.  Way drunk.

Wednesday, October 21, 2015

Grebow v. Mercury Ins. Co. (Cal. Ct. App. - Oct. 21, 2015)

Your house is collapsing.  There's severe decay in the steel beams that support the second story of your home.  The contractor and structural engineer tell you not to immediately vacate the home and not live there until the beams are replaced.  Because the thing's going down.

You freak out.  You vacate the home and spend $90,000 to fix the thing.  Because you don't want your house to collapse. Which it's going to do unless you get it fixed.

Fortunately, you have homeowner's insurance with Mercury Insurance Company.  Which expressly covers you for any collapse.  So you request reimbursement.

Mercury Insurance tells you to pound sand.  So you sue.  The trial court grants summary judgment.  Because your house hasn't collapsed yet.  So you're not entitled to a penny.

The Court of Appeal affirms.

Justice Mosk holds that even if the collapse was totally imminent, there's no coverage.  Because you fixed it first.  Now, if you'd have let the thing collapse, yeah, you're covered.

But you're an idiot.  You actually wanted to save the house.  And, for that, it's all totally on you.  Or, as Justice Mosk puts its, "When an insured can prevent an insurable loss from occurring, he or she does so because he or she would rather have the house and property in it than insurance proceeds or reconstruction. The homeowner generally would rather stay in the house than have it reduced to rubble and not have to replace personal possessions."

Your bad for not letting the house be "reduced to rubble" and trying to save your personal possessions.  Your selfish interest in that regard lets the insurance company off the hook.

People v. Woods (Cal. Ct. App. - Oct. 20, 2015)

Man ("Woods") meets Woman ("A.C.") while both of them are playing "Worlds of Warcraft" online.

Man is in California.  Woman is in Rhode Island.  Indeed, Woman is married, and has a twelve-year old daughter, as well as three stepsons of her husband.

Woman plays way too much WoW.  (From what I hear, this seems to be a common problem.)  Her twelve-year old daughter ("Daughter") plays WoW as well.  Woman plays so much WoW that her marriage breaks up, since her husband isn't happy she's playing the game at all hours to the neglect of her family.  Fair enough.

Woman and Daughter thus move out of the house, and Woman continues to hang out online with Man.  Ultimately, Man and Woman plan to meet.  Man drives from California to Rhode Island to finally meet Woman in person.

I know you're thinking that I'm now going to say that Man kidnaps Woman, or Woman turns out to be a Man, or aliens invade or something like that.  Nope.  No such weirdness.

Okay, well, a little weirdness.  This is a criminal case after all.

First, the ages are not what you might suspect.  This isn't a 45-year old male trolling for a 14-year old woman.  Woman is 31.  Man is . . . 19.

Not what you initially thought, eh?

But that's fine.  Relationships -- particularly online relationships -- come in different styles.  I'm down with that.

You'll nonetheless notice that Man is actually closer in age to Daughter (a gap of 7 years) than he is with Woman (a gap of 12 years).

Though, to reiterate, Daughter is twelve.  Not good.

So now you can figure out why this is a criminal case.

Daughter sleeps in between Man and Woman at the hotel, Man allegedly molests Daughter, and Woman allegedly ignores Daughter's pleas.  Man then moves to Rhode Island and lives with both Woman and Daughter; ironically, in Woman's parent's home.  Man allegedly continues to molest Daughter, pretty much every day, and this continues a long time, including when Man, Woman, and Daughter move into their own place in Rhode Island, and then when they're all living together once they move to San Diego.

Hence why it's a criminal case in California.   (Parenthetically:  In San Diego, the group initially lives with Man's father, stepmother, and grandfather.  Keeping everything in the family again.)

I'll spare you the details of the alleged daily molestation, which the Court of Appeal spells out in exhaustive detail.  But I will give you one line from the opinion, which is also unusual:

"A.C. [Woman] would occasionally participate in the sexual encounters between C.C. [Daughter] and Woods [Man]. . . . At some point, Woods began taking pornographic photographs and videos of himself, C.C., and A.C. engaged in various sex acts."

Ick.  Especially ick.

I'll leave aside the abortion, some other gross stuff, and the abuse.  Here's another piece of the story -- which comes only pretty late in the opinion -- that you don't usually see in these types of cases:

"C.C. testified that at some point in time, as early as when the three were living in Rhode Island, she developed romantic feelings for Woods and began to regard him as her boyfriend. She started to act 'like a girlfriend.' C.C. testified that she believed she 'should make [herself] like him and it will make it easier.' She also testified that once she began regarding Woods as her boyfriend, she and Woods went out on dates, and she occasionally initiated sex with him. C.C. told Woods that she loved him on a daily basis, and made plans for a future with Woods."

As you can figure out, ultimately, the authorities get involved.  Here's how the whole sordid tale comes to an end:

"In early January 2012, A.C. called the police after Woods was violent toward her and C.C. Woods had pushed A.C. down to the floor and had thrown C.C. onto the bed so hard that the bed broke. After A.C. and C.C. left the house, Woods sent A.C. threatening text messages. In the first, he said, "I'm going to find you and kill anyone you're with." Another said, "I'm killing myself and all the animals with me. Fuck you guys." A.C. was concerned that he would follow through on his threats.

The law enforcement officer who investigated the incident noted that Woods was six feet tall, and weighed 245 pounds. C.C. was "much smaller." C.C. did not mention the sexual abuse to the officer because her mother had told her not to say anything about it, and she feared she would "get taken away" from her mother.

Shortly after this incident, C.C. went to West Virginia to live with a "friend."

In early March 2012, Woods met Brittany M. online and they began a romantic relationship. Later that month, Brittany moved in with Woods at his father's home in Ramona. On August 9, 2012, Brittany called the sheriff's department to report that Woods possessed child pornography. Woods had given Brittany two computer memory sticks and asked her to destroy them. Brittany eventually discovered that the memory sticks and Woods's computer contained explicit pornographic images and videos involving C.C., whom Brittany knew was the daughter of Woods's ex-girlfriend, and a minor.

A few weeks after Brittany contacted the authorities, police executed a search warrant and seized Woods's computer, cellular telephones and a computer tower. A forensic examiner found "thousands" of pornographic pictures and videos depicting C.C., Woods, and A.C. on these devices.

Woods and A.C. were arrested. A.C. cooperated with police and eventually pled guilty to committing lewd acts with a minor, felony child abuse, and felony accessory after the fact. A.C. testified for the prosecution at Woods's trial."

Woods ultimately gets sentenced to life in prison without the possibility of parole, plus an additional 53 years in prison.  The Court of Appeal reverses some of his convictions for failure to instruct on some lesser included offenses, so that's a partial victory for him.  But likely a temporary one.  He's still in prison.  And still facing a retrial.  At which he may well be convicted again.

Plus his fellow inmates aren't likely to appreciate the nature of his offenses.

So thing look bleak for Woods whatever way you cut it.

And remember, he was 17 when this all started.  Playing World of Warcraft and flirting with a MILF online.

Things went badly after that.  Incredibly, incredibly badly.  For everyone involved.

Tuesday, October 20, 2015

Jameson v. Desta (Cal. Ct. App. - Oct. 20, 2015)

Part of me is glad that Justice Nares decided to publish this opinion.  Because that may make slightly more likely a grant of review by the California Supreme Court.  Which should reverse.

At issue is a pro se complaint filed by an incarcerated inmate who claims that a hospital doctor improperly treated his hepatitis.  The events at issue transpired in 2002.  The case is still ongoing.

Three times the trial court previously entered judgment in favor of the defendant.  Three times the Court of Appeal reversed and remanded; in 2007, again in 2009, and again in 2013.

I won't recount the facts of the case, which are adequately discussed in the prior opinions.  The most troubling portion of the present appeal is the trial court's grant of a nonsuit.  Which the trial court did immediately after the plaintiff's opening argument.

Plaintiff says that the nonsuit was improper.  Justice Nares, however, says that this contention requires a transcript of the trial, which doesn't exist, so it's not cognizable.  That part of the opinion may well be right.

But plaintiff says that he was impoverished, had been granted a fee waiver, and couldn't afford a court reporter, so one should have been provided for him.  But Justice Nares says simply that's not what the underlying rules require:  those rules (and the San Diego Superior Court rules) say that even those people with a fee waiver have to pay for their own court reporter if they want one.

Okay.  I follow that.  That's indeed what the rules may well say.

But Justice Nares thinks that's the end of the matter.  The statute says you don't get a court reporter, without a court reporter you can't prove the trial court erred, so you lose.  Sucks to be you.

Whereas, in my view, that's unconstitutional.

Poor people have a right under the Due Process Clause to seek redress in court.  Despite the fact they may be poor and can't afford the filing fees.  That's why (in part) we have fee waivers.  Because poor people are entitled to due process even if they can't afford to pay the relevant fees.

That Due Process right, in my view, is not satisfied by merely letting poor people in the door, only to slam it shut in their face once they're actually in court.  Poor people have the right to actual justice.  A right that, for example, includes the right to file an appeal.  Again:  Even if they can't pay for it.  That is why (again, in part) we allow fee waivers on appeal.  Because even poor people have the right to obtain justice in the trial court and, if the trial court errs, on appeal.

That right is meaningless, however, under the Court of Appeal's rule.  Which says that poor people can file an appeal, but have no right to a transcript, which means -- as here -- they automatically lose their appeal.

Yes, the relevant local rules expressly provide the poor people have to pay (incredibly high) fees for a court reporter, which they can't afford.  Yes, the appellate rules say that without a transcript, you're barred from raising any evidentiary errors on appeal, including the grant of a nonsuit.

Which is why the underlying transcript rules are unconstitutional.  Poor people have a right to have those fees paid as well if they make an adequate showing.  Which plaintiff undeniably made here in order to get the fee waiver (both in the trial court and on appeal) in the first place.

It may perhaps be that plaintiff here didn't make that argument.  (Though I imagine he may well have indeed made it.)  If so, Justice Nares should say so, rather than simply concluding -- as he does in the opinion -- that there's no right to a transcript, even where (as here) that dooms your appeal.  But if the argument was made (and, in truth, perhaps even if it wasn't), I think that the correct rule is that people in plaintiff's position are indeed entitled to a fee waiver for the transcript.  For precisely the reasons identified by the present case.

The Court of Appeal says at the outset of its opinion:  "While this court is sympathetic to the plight of litigants like Jameson whose incarceration and/or financial circumstances present [] challenges, the rules of appellate procedure and substantive law mandate that we affirm the judgment in this case."  With respect, I don't think the Court of Appeal's holding properly reflects that sympathy.  There's a way we can allow impoverished individuals to obtain justice:  through fee waivers.  Those could, and should, apply to the provision of court reporters.  The Due Process Clause, in my view, affirmatively requires such a rule.  Whereas the Court of Appeal says that what transpired here was perfectly okay.

But it wasn't.  Which I hope that some other court at some point recognizes.

Sheridan v. Touchtone Pictures (Cal. Ct. App. - Oct. 20, 2015)

This blog is not TMZ.  My job is not to disseminate all the celebrity gossip that's fit (or not fit) to print.

Nonetheless, when I see an opening paragraph of a published opinion that begins like this, I can't help but mention the case:

"Touchstone Television Productions (Touchstone) hired actress Nicollette Sheridan to appear in the television series Desperate Housewives, a show created by Marc Cherry. Sheridan sued Touchstone under Labor Code section 6310.2 alleging that Touchstone fired her in retaliation for her complaint about a battery allegedly committed on her by Cherry."

Oooh!  Exciting!  A famous celebrity!  Hollywood!  Touching!  Firing!  Who couldn't be excited about that?!

I'm not going to discuss the merits, which you're free to read on your own.  But I will nonetheless let you know the result:

"The trial court sustained Touchstone’s demurrer to the complaint on the basis that Sheridan failed to exhaust her administrative remedies by filing a claim with the Labor Commissioner. The sole issue on appeal is whether Sheridan was required to exhaust her administrative remedies under sections 98.7 and 6312. We conclude that she was not required to do so and therefore reverse."

Victory for a desperate housewife.  Or at least an actress who plays one.

Friday, October 16, 2015

In Re Andrae A. (Cal. Ct. App. - Oct. 15, 2015)

"Andrae (born Nov. 1996) was detained from his mother by the Department of Children and Family Services (DCFS) in December 2007, when he was 11 years old. Andrae was adjudicated a dependent of the juvenile court in April 2008 . . . . In March 2009, the juvenile court terminated his mother’s reunification services and ordered Andrae placed in long-term foster care.

In December 2009, a supplemental petition was filed alleging that Andrae’s current caregiver had requested his removal from her home. An accompanying report said that Andrae, then age 13, had engaged in anal and oral sex with the caregiver’s nineyear-old daughter. Andrae subsequently admitted having been sexually abused by an older cousin when he was nine years old, and having sexually abused several younger relatives. Andrae was arrested under Penal Code sections 288, subdivision (a), and 261.5, subdivision (c). He was placed in a new foster placement under dual supervision by DCFS and the probation department. . . .

In April 2014, Andrae, then 17 years old, was located in Phoenix, Arizona, where he had been arrested for trespassing. Prior to his arrest, he had been living with his girlfriend and their twin sons; his girlfriend was four months pregnant with their third child. Andrae was extradited to California in connection with an outstanding arrest warrant."


Thursday, October 15, 2015

U.S. v. Mobley (9th Cir. - Oct. 15, 2015)

Lest one think that the risks attendant to being an ATF agent typically involve only the risk of paper cuts as one shuffles through weapon registration forms:

"Mobley’s older cousin, Otis, arranged to sell a grenade launcher for $1,000 to an acquaintance named Aaron McGrew. Otis and McGrew agreed to meet mid-afternoon in the parking lot of a Chevy’s restaurant. Otis drove to the meeting site accompanied by Mobley and Hutcherson. None of them knew that McGrew was working as an informant, so they did not suspect that one of the men accompanying McGrew—Agent Palmer—was actually an undercover agent. Agent Palmer planned to buy the grenade launcher using $1,000 in ATF funds, which he brought with him to the deal.

When Otis, Mobley, and Hutcherson pulled into the parking lot, McGrew and Agent Palmer were already there, parked in a four-door car being driven by Agent Palmer. Another informant who joined them, Dwight Bullard, was standing outside the car. McGrew got out of the car and greeted Otis. McGrew then got back into the front passenger seat of Agent Palmer’s car, while Mobley and Hutcherson got into the back seat, with Mobley sitting behind McGrew and Hutcherson sitting behind Agent Palmer. Otis and Bullard stood outside the car nearby. . . .

After the parties exchanged introductions, Mobley removed an object concealed under a coat he was carrying, which McGrew and Agent Palmer expected to be the promised grenade launcher. Instead, it was a loaded TEC-9 handgun. Mobley suddenly lunged forward over the center console, chambered a round, and pointed the gun at Agent Palmer’s head and chest, which caused Agent Palmer to grab the gun and attempt to direct the barrel away from him. Hutcherson then drew his own gun and aimed it at Palmer’s head. McGrew, sensing that a bad situation was about to get worse, jumped out of the car and took off running. Agent Palmer and Mobley engaged in a brief struggle for control of Mobley’s gun, which Agent Palmer lost. While holding Agent Palmer at gunpoint, Mobley or Hutcherson shouted, “Where’s the money at?” Mobley demanded, twice, that Agent Palmer empty out his pockets. At that point, Bullard reached through the open front passenger door and grabbed Mobley’s gun, pulling the barrel away from Agent Palmer. As Bullard and Mobley fought for control of the weapon, Mobley tried to fire it several times, but Bullard managed to thwart those attempts byplacing his thumb behind the trigger. Bullard eventually succeeded in disarming Mobley, and Agent Palmer’s cover team of plainclothes officers rushed in at about the same time. They arrested Mobley on the spot and shot the still-armed Hutcherson as he attempted to flee. Officers arrested Otis a short time later in a nearby field."

That's a fair piece more danger than I'll ever face in my job, hopefully.  Unlike Agent Palmer, I've never had to respond to my spouse's entreaty "How was work today, honey?" by saying "Not bad.  Could have been worse.  Was almost shot and killed."

People v. Goolsby (Cal. Supreme Ct. - Oct. 15, 2015)

I thought that this case was a difficult one.  The California Supreme Court had a slightly different take, and unanimously reverses and remands.

That said, the really hard part remains whether the Double Jeopardy Clause bars a retrial.  And the California Supreme Court seems to agree with me that that one ain't at all clear.  It doesn't decide the issue.  Remanding for the Court of Appeal to decide the matter in the first instance.

And that's the toughie.

Wednesday, October 14, 2015

In Re Schwartz-Tallard (9th Cir. - Oct. 14, 2015)

It's an 11-member en banc panel.  It's a straightforward statutory interpretation question:  When the statute entitles you to attorney's fees because a creditor has violated the automatic stay in bankruptcy, are you merely entitled to fees incurred in fighting the stay, or for fees incurred in obtaining damages that resulted from the violation of the stay as well?

Eight members of the panel say that the answer is clearly "Yes".  The text of the statute is clear.  The purpose of the statute is clear.  You get to recover all your fees.

Two members of the panel (Judges Bea and O'Scannlain) agree that the text of the statute is clear, so (in a classic move by textualists) don't want to say anything about the statutory purpose.  You get to recover all your fees.

That leaves one member of the panel.  Judge Ikuta.  Who dissents.  She agrees that the text of the statute is clear.  But she (alone) thinks that it means that you don't get to recover all your fees.

When there's a ten to one vote in an en banc case, especially when (as here) it's a low-profile one that's not inherently political, the typical reason for the sole dissenting vote is that the dissenter was on the panel whose decision is being vacated by the en banc court.  So I looked.

Nope.  Judge Ikuta wasn't on the panel.  Indeed, none of the judges on the panel were drawn for the en banc court.

So that doesn't explain it.

Aha!  But the en banc court decided to overrule circuit precedent from 2010.  Judge Ikuta was on the court back then.  Perhaps she was on that panel, and doesn't like her prior opinion overruled.

So I looked.

Nope.  She wasn't on that panel either.  And, interestingly, Judges Hawkins, Berzon, and Clifton were on the panel of that now-overruled precedent, but none of them were drawn for the present en banc court either.

So we're left with a simple explanation.  It's not a prior decision.  She simply disagrees with every single one of her colleagues on the en banc court.

On the one hand, I kind of appreciate a dissent in this context.  When the outcome is preordained, and you're the sole outlier in an 11-member panel, I'm sure it's easy -- or at least easier -- to go along with the uniform consensus of everyone else on the panel.  Especially (again, as here) in a low-profile case in which your ire isn't up, and especially when (as Judge Ikuta says in her dissent) you believe that the interpretation of the statute adopted by the majority achieves a better policy result than the one you think the text actually articulates.  It'd be super easy to simply join with the majority.  So, on one level, my hat's off to Judge Ikuta for dissenting notwithstanding the more difficult path that the futile articulation of her position requires.

But, on the other hand, you've got to reflect at least a tiny bit when you're the only person on an 11-member panel -- one composed of very smart people -- that thinks a statute clearly says X, when to a person everyone else says that the statute clearly says Y.  You can't get a much starker conflict than that, right?  You've got to think a little bit, don't you, that you might well be wrong when every other person to think about the topic thinks that the answer is clearly different than the one that you think is crystal clear, no?  You'd think that might give one a little pause.  And, if you often ended up on the bottom of similar 10-1 votes, that might be even more reason to reflect upon your decision making, right?

None of which says that Judge Ikuta shouldn't have dissented.  If that's the way she views the thing, so be it.  Say what you feel's right.

But it might be a good occasion to at least pause for a second and wonder what everyone else, of all political stripes, seems to see that you do not.

Tuesday, October 13, 2015

Stanislaus Food Products v. USS Posco Industries (9th Cir. - Oct. 13, 2015)

You remember Matsushita from law school, right?  It's the case that notably said that the evidence of an antitrust conspiracy need to be "plausible" in order to survive summary judgment, and that a court must determine on such a motion whether or not there's an alternative ("innocent") explanation for the market activity at issue in the lawsuit.

Here's a perfect contemporary example of how Matsushita is applied.  Judge McKeown holds that there's no plausible evidence of an antitrust conspiracy because, on the facts of this particular case, the participation of U.S. Steel in this alleged conspiracy would make no sense.

It's a straight-up application of Matsushita.  A perfect example for law students and lawyers alike.

Monday, October 12, 2015

Navarrette v. Meyer (Cal. Ct. App. - June 22, 2015)

It's Columbus Day today.  Or Aboriginal People's Day.  Or whatever.  It's a holiday.  So no published opinions to discuss.

But we can still learn something.  For example:

When you're riding in a car with someone, don't encourage them to go 81 m.p.h. on a residential street with a speed limit of 25 m.p.h.  Sure, it'll be "cool", and perhaps they'll do it to impress you.  Maybe the car will even do some "neat" stuff like fly over hills on the road and "get air."

But when the driver loses control of the vehicle, and strikes a father putting his child into a car seat, severing his legs and killing him, guess what?  You may well be liable.  Even though it was the driver who actually agreed to drive so fast.  You may have tortiously aided and abetted him by encouraging him to engage in an exhibition of speed.

So holds the Court of Appeal.  Reversing the grant of summary judgment below.

Thursday, October 08, 2015

People v. Garcia (Cal. Ct. App. - Oct. 5, 2015)

When two people come toward you as you enter your car, one of whom lifts his shirt, points a gun at you, and excitedly says “Get off the truck. Give me the keys. Give me your purse. Give me the keys," my strong suggestion is to do so.  No truck (or purse) is worth your life.

But Ms. Mendiola thought differently.  She thought the defendant was bluffing.  Even when he said:  "I'm going to shoot you. I'm going to shoot you."  To which Ms. Mendiola responded, in words that (quite frankly) surprised even me, "Well, shoot me."

Now, as it turns out, there was apparently some reason for Ms. Mendiola to believe that the man with the gun would not, in fact, shoot her.  Because his response was not to promptly shoot her.

Instead, he turned to the woman next to him and asked, "Do I shoot her?"

At which point the woman said "Yes."

So he did.

In the mouth, no less.

It actually didn't turn out as bad as it easily could, since Ms. Mendiola didn't die; indeed, she didn't even initially think she'd been shot (despite being shot in the face!), and drove to meet her husband at a nearby location.  But eventually the sheer volume of blood, which she initially thought was saliva, streaming from her mouth convinced her that an ambulance was her best call.

The male defendant, Andrew Garcia, was 15 at the time of the offense.  He was sentenced to 35 years to life.  Which was reduced (by concession) to 32 years to life in the Court of Appeal.

That's still a lot of time, and Mr. Garcia contends it's cruel and unusual.  But pursuant to Section 3051, Mr. Garcia is categorically eligible for parole (notwithstanding his sentence) after spending 25 years in prison.

So the Court of Appeal affirms.

No joy for Mr. Garcia.  No joy for Ms. Mendiola, either.

But next time, don't say "Well, shoot me."  Seriously.  Because a guy that's too scared to shoot you might also be so stupid that he'll instead ask the woman next to him whether he should shoot, and she might well say yes.

Wednesday, October 07, 2015

Glick v. Edwards (9th Cir. - Oct. 7, 2015)

I was originally going to give Judge Bea a "Right on!" for this opinion.  But the more I think about it, the more I'm starting to become convinced that I shouldn't even give him a high five.

Before I discuss the opinion, let me give you my internal hypothetical that I think changed my mind:

Imagine that all of the district court judges in Montana are driving back to their hotel room in a car while attending, say, a Ninth Circuit conference in Missoula.  (You might be thinking that that's an awfully big car, a minivan will work just fine, since there's only six of 'em.)  Judge Molloy is driving, and the other five judges start making a huge ruckus, toying around and throwing things.  As a result, Judge Molloy is distracted, and accidentally runs a red light, and hits a car driven by Abe Loracs, a California resident on vacation in Montana, seriously injuring him.

Mr. Loracs subsequently sues both the driver (for running the red light) and the passengers (for distracting the driver), and since there's complete diversity, the lawsuit ends up in federal court.

The case then gets assigned to Judge Molloy.  Who refuses to recuse himself.

Mr. Loracs goes ballistic.  "What the hell?!  Surely Judge Malloy has to recuse himself from hearing a lawsuit against him!"  So Mr. Loracs appeals to the Ninth Circuit.

But the Ninth Circuit affirms.  Holding that pursuant to the "law of necessity," Judge Molloy doesn't have to recuse himself, since all of the district court judges in Montana were defendants and hence "when all are disqualified, none are disqualified."  Moreover, adding insult to injury, Mr. Loracs can barely contain himself as he reads the first paragraph of the Ninth Circuit's opinion, which says:  "An old fable tells tale of a Pope, who, convinced of his own grave sin, called on his cardinals to judge him. “No, Your Holiness!” they replied. “We cannot sit in judgment over you. You must be your own judge.” And so, faced with the necessity his soul be judged, the Pope judged himself. He confessed his sin and abdicated the Holy See. He is now commemorated as a saint."

Crazy, right?

Not as crazy as you might think, apparently.

Sure, Judge Bea's opinion holds, we could solve this problem, if we felt like it.   "It may well have been possible to find an unconflicted Article III judge somewhere in the country who could hear [this] case, perhaps by transferring the case to a different district or assigning a judge from another district to sit by designation."  But it we don't feel like doing that, we don't have to.  Judge Molloy can indeed hear a lawsuit in which he's directly named as a defendant.

And those quotes are from today's actual opinion, not just a hypothetical.

I'll be the first to admit that, as I said, when I first read Judge Bea's opinion, it didn't strike me as crazy at all.  Indeed, it seemed entirely reasonable.  In large part, I think, because the underlying lawsuit here is a crazy one litigated in pro per.  Ron Glick thinks that a large portion of the world is out to get him, and so names a plethora of defendants, including every federal district court judge in Montana, as a defendant, alleging that they're part of the conspiracy.  Faced with such a claim, I'm in a great deal of sympathy with Judge Bea's concept that we're not required to move heaven and earth in response to such absurd allegations.  One dude in the alleged worldwide conspiracy can indeed go ahead and promptly dismiss it.

But the holding of Judge Bea's opinion is broader than that.  And would mean that, even in the case I've hypothesized, Judge Molloy can still properly preside over the action.

That simply can't be right.

(I'm not going to discuss in detail Judge Bea's additional trick that says that Mr. Glick accidentally sued "all" district court judges in Montana, including future ones sitting by assignment.  But I'll add that, among other things, this seems an implausible reading of the complaint, since Mr. Glick hardly thinks that the existing worldwide conspiracy would necessarily include any judge subsequently designated by assignment, regardless of identity.)

What I think is really driving Judge Bea's opinion is the same thing I've identified:  that the present case is simply frivolous.  In my view, that fact, combined with the rule of necessity, makes it entirely proper to let Judge Molloy continue to preside over the case despite being named as a defendant.

But Judge Bea's opinion expressly refuses to rely on such a distinction, saying:  "We need not now decide whether § 455(b)(5)(i) excepts, for example, a situation in which a plaintiff’s claims against the presiding judge are facially improper or frivolous."  Indeed, to be even clearer, Judge Bea says expressly that his articulated rule is a categorical one:  "The rule of necessity thus permits a district judge to hear a case in which he is named as a defendant where a litigant sues all the judges of the district."

Which means that Judge Molloy also gets to preside over the lawsuit against him in my hypothetical.

And that's wrong.

So, in the end, I think the right rule is a recusal exception (at least in the present context) for "necessity plus frivolousness," not merely "necessity".  Because, in my mind, for a non-frivolous complaint against all six judges of the Montana federal district court, yeah, definitely, you've got to bring someone in from the outside.

Beyond a shadow of doubt.

Tuesday, October 06, 2015

McMonagle v. Meyer (9th Cir. - Oct. 6, 2015)

Who says that the Ninth Circuit can't crispy, cleanly, and unanimously overrule circuit precedent in an en banc proceeding?

It certainly did so here.

United States v. Moser (9th Cir. - Oct. 6, 2015)

If you want (or need) a roadmap, and powerful quotes by the Ninth Circuit, to help you avoid getting your requested fee award slashed by the district court, here it is.

You're welcome.

Monday, October 05, 2015

Rodriguez v. Robbins (9th Cir. - Oct. 2, 2015)

DOJ attorney Sarah Wilson got some incredibly bad news in August, when the Ninth Circuit issued an order to show cause why she shouldn't be sanctioned for deliberately misleading the court during oral argument and for improperly attempting to influence the court's opinion by leaking something to the L.A. Times immediately prior to oral argument.  (I mentioned this order at the time.)

October was a much better month for her.  Based on the Department of Justice's response to the OSC, the Ninth Circuit vacated the OSC and declined to award sanctions.

The panel still isn't perfectly happy about what Ms. Wilson did at oral argument.  But the worst things the panel thought about Ms. Wilson apparently weren't true.

So no sanctions.  Being incredibly scared is sanction enough.

Norsworthy v. Beard (9th Cir. - Oct. 5, 2015)

The popular press will occasionally refer to litigation in which the California Department of Corrections has been ordered to provide a prisoner with gender reassignment surgery.  (For example, here's the Fox News version of the story.)

The next time one of your friends mentions this case, you can supplement this discussion with a note that the case has at this point been dismissed as moot.  Since the prisoner at issue has been released on parole.

There's still a lingering question about whether the underlying opinion -- a nonprecedential one by the district court -- should technically be vacated as well (in light of the subsequent mootness).  Judge Callahan believes the answer is clearly "yes" since the defendants had nothing to do with the grant of parole:  "The process by which the Parole Board determined that Ms. Norsworthy’s confinement was no longer required and the Governor’s review of that decision are set forth fully in the documents that have been submitted to the Court. There is no real doubt that the Parole Board and the Governor are not subject to or responsible to the CDCR."

Judges Reinhardt and Tashima, by contrast, are not as convinced of this fact as Judge Callahan.  In a lengthy footnote, they find it "interesting" (to say the least) that the case just-so-happened to be made moot the day before oral argument.  Here's what they say in a lengthy footnote:

"[A]lthough our dissenting colleague may be willing to accept the defendants’ assertions regarding the independence ofthe parole review process, we are notso convinced. Before Norsworthy filed this suit, a panel of the parole board had on several prior occasions denied her parole. It last did so in March 2013 for a three-year term, meaning that Norsworthy’s next parole hearing should in the ordinary course have come in March 2016. Four months after Norsworthy filed this suit in February 2014, however, the parole board decided to advance the date of her next parole hearing. That hearing was then delayed and, in the meantime, the district court granted the motion for a preliminary injunction in April 2015. A little over a month later, Norsworthy finally had a parole hearing, at which point a parole board panel approved her application.

By statute, both the full parole review board and governor can review a panel decision within a certain time. See Cal. Penal Code §§ 3041, 3041.2. Here, if both the full parole board and governor had let these statutory periods lapse without action, the parole determination would have become final on October 18, 2015. As it happened, this court asked the parties on July 20 to provide an update regarding Norsworthy’s parole and address whether the parole board panel’s decision mooted the case. In their response, defendants informed us for the first time that the full parole board had at some point approved the panel’s decision and that defendants “anticipate[d]” a final decision from the governor by August 7 that, if favorable to Norsworthy, would insure that she would “be released from prison in August.” The governor did indeed approve Norsworthy’s parole on August 7. Nevertheless, Norsworthy argued that oral argument should proceed as scheduled on August 13 because CDCR planned to release her on August 14, meaning that she would still be incarcerated on the date of oral argument. Defendants reply—filed on August 12, the eve of oral argument—informed us that Norsworthy had in fact been released that very morning. The reply did not divulge why Norsworthy’s release date had changed. . . .

[T]hese coincidences indicate that there is at least some chance that defendants influenced the parole process."

Judge Callahan, by contrast, says that this claim -- and the majority's decision to remand the case to the district court to see if defendants in fact influenced the parole process -- "approaches sophistry".

Regardless, the case is moot, and Ms. Norsworthy will not have the state pay for her reassignment surgery.  At least if she stays out of prison.

One more thing.  It's a sign of the times that both the majority and the dissent expressly refer to the petitioner as a woman.  Because whether you're sympathetic to her claims or not, at this point in our culture, it's a sign of respect to refer to someone by their identified gender.

On that, as with the fact that the present case is moot, everyone on the panel agrees.

Friday, October 02, 2015

People v. Poletti (Cal. Ct. App. - Oct. 1, 2015)

When you're an attorney, and you're in court, you have to control your anger, and not be disrespectful to the judge.

Especially when you're a prosecutor.

That's a lesson that Santa Cruz ADA Ross Taylor apparently didn't learn very well.  Though both the trial court and the Court of Appeal remind him of that duty after the fact.  The trial court held him in contempt.  The Court of Appeal refers to him by name in a published opinion and refers him to the State Bar.

What Mr. Taylor did was fairly straightforward.  He didn't like the judge's rulings, and repeatedly let that fact be amply demonstrated.  Here's the exchange that got ADA Taylor found in contempt:

“THE COURT: Mr. Taylor, your obvious disdain for selected rulings of the Court is totally unprofessional. The way you push back, and it's been almost from the very beginning of the case. And, you know--
“MR. TAYLOR: Are you serious?
“THE COURT: Yes, I am totally serious. It's not a good time to engage me in argument about it--
“MR. TAYLOR: Ya, well, you know--
“THE COURT: Mr. Taylor, because I'm not going to listen to you. And you are increasing my ire--
“MR. TAYLOR: I'm not interested in what you have to say. I don't know if I could be any less interested. Some of the rulings that you've made are just outrageous, Your Honor. . . .”

As an aside:  Saying "Are you serious?" to a judge is pretty much never a good idea.  I struggle to come up with an example of where this would be the right response to something the person behind the bench says.

ADA Taylor did some additional interesting stuff with respect to a witness, and engaged in some other deeply troubling conduct with respect to his Brady obligations.  But it was his attitude that raised the ire of the trial court and the Court of Appeal.  Here's how the Court of Appeal describes a portion of his conduct:

"In addition to his offensive statements to the court outside the presence of the jury (“I'm not interested in what you have to say. I don't know if I could be any less interested.”), prosecutor Taylor exhibited rudeness while jurors were present. We begin with just four of numerous examples that illustrate prosecutor Taylor's behavior at trial. First, after the court overruled Taylor's objection that a question posed by defense counsel had been asked and answered, Taylor quipped: “So the different answer than she just answered for the same question?” Second, Taylor openly disagreed with a ruling sustaining a defense objection, asserting that his line of questioning “frankly [was] proper.” Third, when the court instructed Taylor to “[s]top editorializing,” Taylor retorted that he was “[h]ardly editorializing.” Fourth, when the trial court sustained one of defense counsel's relevancy objections, Taylor responded “I'm not sure that it's irrelevant.” These were not isolated incidents, as evidenced by the trial court's statements. When the court reprimanded Taylor outside the presence of the jury, it commented “[a]bout 80 percent of my evidentiary objections you want to argue in the presence of the jury about the appropriateness of my ruling. Stop it.” And, the court described Taylor's inappropriate remarks during the hearing on his citation for contempt as “the culmination of a continuum of insolent and inappropriate behavior by [the prosecutor] that occurred throughout the trial.”

Not good.

I understand that people who go to law school and become lawyers are often not exactly known for their placid temperament.  I also understand that prosecutors sometimes are profoundly convinced that the person they're prosecuting is guilty, and deserves punishment, and hence are frustrated when various decision by the judge don't go their way.  (Ditto, on the other side, for defense counsel.)

But you've got to calm down.  Take a deep breath.  Trust the system.

Including your participating in it as an officer of the court.

Thursday, October 01, 2015

In Re Marlene Penrod (9th Cir. - Oct. 1, 2015)

This is a fascinating opinion by Judge Watford.  And if you're keenly interested in the "hanging paragraph" of 11 U.S.C. § 1325(a)(*), which creates a special rule for auto lenders by prohibiting bifurcation of claims that are secured by a “purchase money security interest” in a motor vehicle recently acquired for the debtor’s personal use, you're going to be doubly thrilled.  And who isn't?

But the most interesting part of the case to me is its factual underpinning.  Marlene Penrod traded in a Ford Explorer worth $6000 -- on which she owed $13,000 -- so she could buy a Ford Taurus worth $25,000.  So this is someone who's got negative equity in a car, but there's someone still willing to loan her money, presumably at confiscatory rates, so she can trade up to a Taurus.

But, predictably, she falls behind, and ultimately declares bankruptcy.  At which point AmeriCredit, which loaned her the money for the Taurus (and paid off her Explorer), isn't happy with her proposed bankruptcy plan, since it would result in a secured claim for only $16,000 (the value of the Taurus at the time) and an unsecured claim (which basically would be wiped out) for $10,000.  So it objects to her plan.

There's then a legal fight.  Not surprising.  But remember, it's over a mere $10,000, when $16,000 is already getting paid, an a bankrupt debtor.

Ms. Penrod ultimately wins that dispute.  What legal fees did she say she incurred in litigating the "hanging paragraph" issue in Section 1325(a)(*); e.g., in fighting AmeriCredit's objection to her plan to make $10,000 of its debt unsecured?


I'm not necessarily saying she didn't expend $245,000 of legal fees in fighting a $10,000 dispute.  I'm not necessarily saying she did, either.

But what I am saying is that it makes no rational economic sense to spend $245,000 in legal fees to fight a $10,000 dispute.  Especially when that doesn't even count the legal fees spent on the other side.

I understand that there's an attorney fee provision here in which AmeriCredit will recover it's fees (albeit from a bankrupt debtor) if it wins and Ms. Penrod's lawyer will recover fees (at least under the Ninth Circuit's ruling, which reversed the district court on this issue) if her side wins.

But. socially, we should not be spending $245,000-plus -- or anything like it -- on a $10,000 dispute like this.

Even if we allegedly do.

That's not to say that Ms. Penrod shouldn't (or should) be allowed to recover her fees.

But it is to say that $245,000 disputes over $10,000 are socially inefficient.

Though apparently transpire.

People v. Nguyen (Cal. Supreme Ct. - Aug. 13, 2015)

The California Supreme Court recounts:  "In the afternoon of July 21, 1994, Tony Nguyen was giving some members of the Cheap Boys gang a ride home. Vinh Kevin Lac was in the front passenger seat of the car Tony was driving. Tinh Dam and his girlfriend, Chynna Vu, were in the back seat. Vu was a member of the Southside Scissors, a female Asian street gang."

The "Southside Scissors"?!  Really?

I know it's an actual gang.  I was just surprised by the name.

Very surprised.

P.S. - When you read the first eight pages or so of the opinion -- which recounts the details of a large number of gang-related murders -- it sounds like the Wild West out in Garden Grove, Westminster, etc.  Seriously.