Monday, November 30, 2015

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

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

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

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

Monday, November 23, 2015

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

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

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

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

Only once.  But once indeed.

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

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

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

Thursday, November 19, 2015

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

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

Is that permissible?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Just a thought.

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

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

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

Wednesday, November 18, 2015

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

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

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

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

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

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

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

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

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

Tuesday, November 17, 2015

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

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

So that's progress.

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

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

Monday, November 16, 2015

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

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

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

The Court of Appeal affirms.

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, November 13, 2015

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

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

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

Fair enough.

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

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

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

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

Nope.  No mention.  Not even in a footnote.

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

I guess we'll have to see.

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, November 12, 2015

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

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

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

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

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

Something like that.

Wednesday, November 11, 2015

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

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

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

Judge Kozinski writes the majority opinion.

Tuesday, November 10, 2015

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

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

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

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

Monday, November 09, 2015

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

No statute of limitations.  Not dischargeable in bankruptcy.

Pay back your student loans.

We're serious about it.

Friday, November 06, 2015

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

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

Except I'd delete the third footnote.

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

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

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

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

Thursday, November 05, 2015

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

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

Sue 'em in small claims court.

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

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

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

The Court of Appeal says "No."

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

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

Wednesday, November 04, 2015

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

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

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

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

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

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

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

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

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

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

Still.  A very bad set of facts.

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

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

Judge Berzon says:

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

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

Tuesday, November 03, 2015

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

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

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

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

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

But let me add some quick additional facts about Robert:

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

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

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

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

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

Monday, November 02, 2015

Mancilla-Delafuente v. Lynch (9th Cir. - Nov. 2, 2015)

After taking a break since last Wednesday, the Ninth Circuit today issues a published opinion.  Only one.  But it's something.

It's a straightforward opinion by Judge Callahan.  She holds that no matter what the equities, you get deported if you've been convicted of possessing someone else's credit card without their consent.  No eligibility for withholding of removal.  Period.

At least if that conviction takes place in Nevada; other states might be different.  At least if that Nevada conviction took place in 2009 (as petitioner's did); as of 2013, even in Nevada, such a conviction wouldn't subject you to removal (since the maximum penalty is now 364 days).

But since it was in Nevada, and since it was 2009, petitioner gets deported even though he's been in the United States for nearly two decades, and even if he can show, e.g., exceptional hardship to U.S. citizens as a result of his removal.  All from a conviction for which he was sentenced to a fine of $775 and two days credit for time served.

On the one hand, we don't need people in the United States who commit fraud.  On the other hand, adding the penalty of permanent deportation to someone who may have a family (and children) who have been in the United States for their entire lives seems a pretty big hammer to add to a crime that ordinarily only gets you two days in prison.

None of which is Judge Callahan's fault.  She's just applying the law.

But it's an exceptionally harsh -- and potentially arbitrary -- mistress.  At least in this field.  In which a guy in Nevada in 2009 gets deported, but a guy in Nevada in 2013 who does the exact same thing does not, and a guy in (say) Kansas in either year stays as well.  Even if the resulting harm to U.S. citizens in the latter scenarios is much less egregious than in the former.