Wednesday, December 30, 2015

People v. Goode (Cal. Ct. App. - Dec. 30, 2015)

The law of burglary is weird.  Super weird.  It doesn't match what you thought it was at all.

Mark Goode doesn't enter a home.  He tries.  He opens a metal storm door, but can't get in.  A few seconds later, he jiggles a nearby window.  Again, he can't get in.

But that's still burglary.  Because a "part" of his body got into the space between the storm door and the front door.  That's the law.

Weird enough.

But the trial court sentenced the guy based on two burglaries.  One burglary being trying the front door, the other being trying the window (of the same residence) a few seconds later.  Hence adds eight additional months in prison to the guy's sentence.

That's too much even for the Court of Appeal.  One burglary.  The attempts to open the door and window weren't a divisible act.  So still a burglary, even though he guy never actually entered  But only one.

Tuesday, December 29, 2015

McKinney v. Ryan (9th Cir. - Dec. 29, 2015)

Think that the en banc draw doesn't matter?  Or that having the chief judge automatically on the en banc panel doesn't make a difference.

Think again.  Here, it may well be the difference between life and death.

The vote is 6-5 to overrule circuit precedent and overturn the death sentence here.  Judge Fletcher writes the majority opinion.  Joined by Chief Judge Thomas and Judges Wardlaw, Berzon, Christen, and Nguyen.

That makes six.  Judges Kozinski, Gould, Tallman, Callahan, and Bea dissent.  That's five.  One less.

One different person on the draw might have changed the result.

Indeed, if the (archaic) rule about the chief judge automatically being on the en banc court didn't exist, by my count, there'd be around a one-in-three chance that Mr. McKinney would remain sentenced to death.

It's a lottery.  With rules that matter.  And sometimes make a dispositive difference.

Oyama v. University of Hawaii (9th Cir. - Dec. 29, 2015)

You'd think that if you were in the process of trying to get a teaching job in the public schools, you could keep to yourself -- or at least not express to the people reviewing your suitability for the job - that you think that the age of consent should be zero, that online child predation should be legal, that most students with disabilities are "faking" it, that there's no substantial benefit to mainstreaming disabled students, that you think about suicide "every day," etc.

Admittedly, it might well take a 46-page, single-spaced opinion to decide that these comments of yours aren't sufficiently protected by the First Amendment to preclude the government from denying you a teaching credential on the basis of these comments.

But, seriously.  Just learn to keep your mouth shut.  Sometimes discretion is an important part of getting what you want.

Monday, December 28, 2015

U.S. v. Navarrette-Aguilar (9th Cir. - Dec. 27, 2015)

There are many ways that cause me to recognize that I'm getting old.  So many, many ways.

For example, in my first-year civil procedure textbook, there's a district court opinion on summary judgment in the civil lawsuit that arose out of the death of Len Bias.  The question in that case was whether there was a genuine issue of material fact as to whether Mr. Bias used cocaine at a particular point in time.  It's not one of the leading opinions on summary judgment (obviously), but it's nonetheless used as a concrete example of how district courts are supposed to evaluate evidentiary conflicts in determining whether there's a genuine issue of material fact for trial.

For people my age, it's a high-profile case.  Or at least was a high-profile death.  They've heard of Lenny Bias.  But every year, I have to explain to my students who Len Bias was.  The overwhelming majority of them have absolutely no idea.

I currently try to explain that Len Bias was sort of like the Lebron James of his era -- someone incredibly good who came out of school and then promptly, and tragically, died.

Soon enough, I'm sure even that analogy won't work.  I'll have to explain who Lebron James was.

Anyway, today's Ninth Circuit opinion reminded me of Len Bias because the opinion revolves entirely around the "Len Bias law" -- a federal statute that provides that the distribution of a schedule I or II narcotic resulting in a death or serious injury carries a twenty-year mandatory minimum sentence and a mandatory life sentence for those with a prior felony drug conviction.  It's not a statute that I knew anything about prior to today.  It's also yet another example of how mandatory minimums can be used in charging decisions by the relevant authorities to leverage heavy penalties (and/or plea deals).  I imagine that virtually everyone who, say, slings heroin (in any reasonable volume, anyway) is responsible for at least one eventual death down the supply chain.  It's just a matter of following the trail and identifying a particular person.  Then, boom, it's a lifetime in prison.  Your fortune depends on whether there's a prosecutor somewhere who feels like doing the work.

Anyway, Len Bias.  A blast from the past.

Monday, December 21, 2015

Garcia v. Long (9th Cir. - Dec. 21, 2015)

"No" means no.

There are so, so many areas in which this is unambiguously true.  This is one of them.

The police interrogate a suspect, read him his Miranda rights, and then ask him if he wants to speak with them.  The suspect responds:  "No."

We can stop right there.  That's unambiguous.  No means no.  End of story.

The California Court of Appeal, in an unpublished opinion by Justice King in 2011, held otherwise, stating that the "No" was really ambiguous, and hence the suspect's subsequent confession during the questioning was properly admitted at trial.

That's wrong, the Ninth Circuit says.  In an opinion written by Judge Bybee.  "No" isn't ambiguous.  It means what it means.  Indeed, the California Court of Appeal's decision to the contrary was not only wrong, but unreasonably wrong.  So even under AEDPA, habeas relief is warranted.

Judge Bybee is right.  The California Court of Appeal was wrong.  There's nothing ambiguous about "No."

I'll add one more thing to what Judge Bybee says in his opinion.  The Court of Appeal held that "No" was ambiguous because earlier in the questioning, the suspect had said "No" to various questions and then later allegedly "contradicted" that answer.  For example:

"Q: Do you ever go by any other names?
A: No.
Q: No? And where . . . .
A: Well, yeah, yeah, before you continue, sir. Uh, a long time ago when I was, uh, uh, illegal in this country, oh, so many years, I used, uh, Francisco Lopez."

Judge Bybee's opinion says that there's no actual "contradiction" in these prior answers because the subsequent clarifications were consistent with the suspect's original answer.  For example, the police asked Mr. Lopez whether he currently used any other names ("Do you ever go by any other names?") and he said "No," and his subsequent answer that he formerly used a different name ("a long time ago") didn't contradict at all his prior "No."

Judge Bybee's right again.  But I'll add that the alleged "contradiction" is also irrelevant in any event.  A "No" answer is unambiguous even if I previously totally contradicted myself time and time again.
For example, maybe you asked me previously:  "Shaun, are you 49?" and I said "No."  But then, later, I said "Actually, yeah, I'm 49."  Then you asked me:  "Shaun, do you like pizza?" and I said "No," but subsequently admitted that I ate it every day.  Then, after all these negative responses, you ask me:  "Do you want to sleep with me?" and I say "No."

Dude:  That's not ambiguous.  Don't try to sleep with me.  Maybe I lied before.  Maybe I changed my mind before.  That doesn't matter.  My current "No" now still means "No."  My very clear "No" is not somehow an "unclear" response just because previously I made amendments to my prior answers.

To reiterate:  No means no.

A pretty easy thing to remember, actually.

Thursday, December 17, 2015

Olive Properties v. Coolwaters Enterprises (Cal. Ct. App. - Oct. 30, 2015)

Commercial Tenant doesn't feel like paying Landlord rent, so stops doing so.  Around the same time, it also files a lawsuit against Landlord saying that Landlord breached the covenant of quiet enjoyment by leasing space "to a pizza and Italian Restaurant, which for the last 18 months has been taking all of the parking spaces in the shopping center."  Which, presumably, is going to be Tenant's excuse for not paying rent.

Predictably, once Tenant doesn't pay its rent, on November 5, Landlord brings an unlawful detainer action.  But Tenant's got a trick up its sleeve.  It files an anti-SLAPP motion to dismiss, claiming that the unlawful detainer action was filed as "retaliation" for Tenant filing the earlier lawsuit.

And the filing of the anti-SLAPP motion entitles Tenant to all the usual protections therefrom; a stay, briefing, delay, etc.

The trial court, however, is no dummy.  It sees through all this.  It not only denies the anti-SLAPP motion, but awards Landlord $3,392.50 in sanctions for 11.5 hours of attorney time expended in responding to the special motion to strike, finding "that Tenant filed the special motion to strike 'for the purpose of delay.'"  Holding that -- shockingly -- the filing of the unlawful detainer action was not motivated by free speech (i.e., the filing of the lawsuit), but rather the failure to pay rent.

All of which is true.  And awesome.  Exactly what should happen.

Tenant, however, doesn't get the message.  It files an appeal.  Saying that the trial court got is wrong.

The appeal is equally, if not more, frivolous than the underlying motion in the trial court.  I'd be very inclined to spank Tenant with sanctions on appeal.  As well as (likely) its counsel, Lee Durst.  Who's got a couple of additional pending problems of his own.

Respondents are no dummies.  They request sanctions on appeal.

But they make a critical strategic error.  Landlord and its attorneys overreach.

Landlord and its counsel request $73,352.50 in sanctions on appeal.  Twenty-one times what they obtained below.  All for the submission of a brief that the Court of Appeal describes as "essentially was a reiteration of its opposition papers below."

Remember:  Pigs get fat.  Hogs get slaughtered.

The Court of Appeal says essentially the same thing.  Albeit in legalese.  It affirms the denial of the motion to strike, but refuses to award fees on appeal.  Saying:

"‘If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked for in the first place.’ Accordingly, Landlord’s request for $73,352.50 in sanctions on appeal, particularly in light of the $3,392.50 attorney fee award which it sought and obtained in the court below, is denied as excessive."

Don't be greedy.  Or you may well get squat.

Wednesday, December 16, 2015

Jenks v. DLA Piper (Cal. Ct. App. - Dec. 16, 2015)

It's a slow news day.  Okay, maybe not a slow news day.  There's plenty of news in the world.  I imagine, anyway.  But on the California appellate front, there's virtually nothing.  No opinions from the Ninth Circuit.  Only one published opinion from the California Court of Appeal.

But ooohhhh!  It's a lawsuit by a former DLA Piper associate against the firm!  Vitriol!  Scandal!  Litigation!!

Okay.  Only the third of these three.  But still.  It's something.  So we can take a peek.

The plaintiff, M. Todd Jenks, graduates from the University of Florida Law School way back in 1995.  Then, according to his LinkedIn profile, he works for a smallish law firm for a couple of years, and then works for another smallish law firm for another couple of years.  (Todd's profile says he worked for the first firm starting in "January 1996," but he was only admitted to the bar in June 1996.  Maybe the dates are a bit fuzzy.  Or some lawyers don't pass the bar on the first try.)

But in May 2000, Todd breaks into "BigLaw," and joins what was then Gray Cary as an associate attorney.  Things go well.  Or at least they go.  Six years later, in February 2006, Todd signs a “Confidential Resignation Agreement and General Release of Claims.”  He gets paid until August 2006, at which point he's officially let go.

Then, in October 2009, Todd sues.  His lawsuit essentially says that the firm agreed to provide him with disability benefits but "“undervalued” his benefits by computing them based on “artificially reduced salary figures.”"  So Todd says he wasn't getting all the disability benefits to which he says he was entitled.

The thing proceeds to arbitration, despite the fact that Todd fights going there.  But once there, Todd partially wins.  The arbitrator awards him $41,000 in contract damages plus $45,000 in emotional distress benefits.

But the arbitrator finds against Todd on all this other claims.  Gray Cary (now DLA Piper) is fine with the award, and moves to confirm it.  Todd again raises objections; he wants the award modified in his favor.  But he loses.

And the Court of Appeal affirms.

Todd's still a lawyer.  Up in San Francisco.  Nice place to be.  But as far as I can tell, he's now on his own.  Twenty years out of law school.

But at least he got his original award.  So that's something.  For the holidays.

Tuesday, December 15, 2015

Mondaca-Vega v. Lynch (9th Cir. - Dec. 15, 2015)

There's a reason today's en banc opinion took nearly two years to write.  After oral argument.  You can get why from the Order that describes the result:

"The petition for review is denied. Judge Hurwitz wrote an opinion joined by the full panel as to Parts I–III; by Judges Kozinski, Silverman, Rawlinson, Bybee, Murguia and Nguyen as to Part IV; and by Judges Kozinski, Silverman, Rawlinson and Bybee as to Parts V and VI. Judge N.R. Smith wrote an opinion concurring in part and dissenting in part, which Chief Judge Thomas, and Judges Pregerson and W. Fletcher join as to Part I. Judge N.R. Smith concurs in the result of (but does not join) Parts V and VI of Judge Hurwitz’s opinion. Judge Murguia wrote an opinion concurring in part and dissenting in part, which Judge Nguyen joins in full and which Chief Judge Thomas, and Judges Pregerson and W. Fletcher join as to Parts A, B and D. Judges Kozinski, Silverman, Rawlinson, Bybee, N.R. Smith, and Hurwitz would deny the petition for review. Chief Judge Thomas and Judges Pregerson, W. Fletcher, Murguia, and Nguyen would grant the petition for review."


People v. Wright (Cal. Ct. App. - Dec. 15, 2015)

I know it's probably futile to try to persuade anyone to read a 77-page opinion from the Court of Appeal.  There's nonetheless a lot of interesting stuff in there.

It's a murder case.  "Following years of strife between Jennell Wright and her former boyfriend, Le’Mar Green, some of it centered around their three-year-old son, defendant drove to Green’s home, waited for him to return from work, and shot him three times. A jury convicted defendant of first degree murder with a special circumstance finding of lying in wait."  That's fairly cold blooded.

But as the opinion explains, there's a history of conflict between the parties.  So the outcome was by no means clear.

Justice Humes' concurring opinion explains the only area of disagreement:  "Jennell Wright shot Le’Mar Green while he was sitting in his car, minding his own business. The two had had no direct interaction for two-and-a-half days before the shooting, and the only reason they were together at the time of the shooting was because Wright drove herself to Green’s residence, parked her car outside, and waited for him to return home from work. The majority concludes that the trial court erred by not giving heat-of-passion and provocation instructions because of the evidence presented about the estranged couple’s acrimonious history, which included conflicts about child rearing and custody. According to the majority, Wright could have shot Green in a heat of passion or without premeditation as a result of provocation that “developed over a ‘provocatory’ period.” Although I agree that a course of provocatory conduct can give rise to the need for such instructions in some circumstances, I disagree that those circumstances are present here. I therefore do not believe the trial court erred."

The Court of Appeal's opinion also gives some insight into how sausage is made in the jury room.  It also has to deal with the inability of some participants in the criminal justice system to keep their mitts off of Facebook.  Here's a taste:

"On February 20 at 6:38 p.m., two hours after court adjourned until February 25, and the day on which defendant testified, Juror No. 12 posted the following comment on her Facebook page: “WHOA….defendent (?) or defendant (?) or whatever…took the stand today. Velly interesting!” Several people “liked” and/or responded to the comment. At 6:45 p.m., Mr. P. wrote: “He’s guilty. Hang him.” At 6:52 p.m. Juror No. 12 wrote back: “I have to keep an open mind until next week!! They don’t know how easy that is for a blonde . . . feel that breeze blowing thru every day.!!” At 7:07 p.m. Ms. McK. posted: “which trial? Im [sic]watching the tearless Jody [sic] Arias describe how she killed her boyfriend is self-defense . . . yea right . . . the only time she cried is when she was discussing her own life . . . not one tear for him . . . psychopath. . . .” Juror No. 12 responded at 7:18 p.m.: “I have been on one over in Richmond since 1/22.”

Several people responded to the length of the trial, or expressed interest in learning about the case when it was over.

The next day, Ms. McC. posted: “Hey Miss [Juror], are you off today or are you FBing while in court? Do they let you keep your phones with you?” Juror No. 12 responded: “Yeah, my mind is already made up so I am FBing. LOL! Since we are always off on Friday they are just going to wait until Monday to give us the case so we got today off. I never have my phone with me but the 3 times I did, [I] thought it was off & it rings!! Now when we go in, everyone looks at me & asks if my phone is off! I hand it to someone else to double check it.!” Later, Juror No. 12 added: “Everyday but Fridays to Richmond. Hopefully it will be done this next week!” Mr. McC responded: “[Juror]. . . this is your social gold ticket! You’ll have a guaranteed invitation to every meaningful social event in Antioch (. . . that includes the possum round-up and stomp.) Nothing entertains like an inside look at the criminal just-ass system! Milk it, baby!”"

How hard is it to follow the trial court's instructions to keep your opinions about a pending criminal case to yourself?  Fairly difficult, apparently.  At least for some people.

Monday, December 14, 2015

Sturgeon v. County of Los Angeles (Cal. Ct. App. - Dec. 14, 2015)

You know it's an opinion by Justice Bedsworth when it (1) comes out of the 4/3, (2) contains footnotes, and -- most tellingly -- (3) describes the Greek mythological story that "Cassandra’s punishment for refusing to have sex with Apollo was a 'gift' of accurate prophecy accompanied by the curse of having no one listen to her."  Yeah.  That's Bedsworth.

Today's opinion is also worth reading on the merits.  It's about the money that judges get -- or don't get -- for supplemental "cafeteria" benefits.  Some Superior Court judges -- e.g., those in Los Angeles -- get a fair chunk of change (i.e., $57,000).  Other Superior Court judges -- e.g., those in Alpine and Inyo -- get nothing.  It's up to the County.

Someone brought a lawsuit about that, and won.  The Court of Appeal held that this practice violated the Legislature's exclusive obligation to decide how much judges get paid.

At which point the Legislature passed what the Court of Appeal described as an "interim" measure that said that "judges of a court whose judges received supplemental judicial benefits provided by the county or court, or both, as of July 1, 2008, shall continue to receive supplemental benefits from the county or court then paying the benefits on the same terms and conditions as were in effect on that date."  Which purportedly solved the problem, because now the Legislature had itself said how much judges should be paid; i.e., the exact same amount they had previously been paid.

But this gave rise to another problem:  What about judges who started getting benefits after July 1, 2008; i.e., new judges?  Aren't they still getting paid an illegal amount because the Legislature hasn't itself set their supplemental benefit amounts?

Hence the new lawsuit.  And new appeal.

But the trial court dismissed this lawsuit, and the Court of Appeal affirms.  On an interesting basis.

Justice Bedsworth says:  "Look closely at the words of subdivision (a), noting precisely how the Legislature defined the set of judges who are to receive benefits: 'Judges of a court whose judges received supplemental judicial benefits provided by the county or court, or both, as of July 1, 2008, shall continue to receive supplemental benefits from the county or court then paying the benefits on the same terms and conditions as were in effect on that date.'"  (Emphasis in original).  See what he means?  Grammar, my friends.  It's the court that's covered.  Not the judges themselves.  So under this reading, every judge -- even those who started after 2008 -- get supplemental benefits set by the Legislature.  The same that judges on that court got before.

Fascinating.  That's not how I interpreted the thing when I first read it.  But, yeah, he's right.  As a matter of grammar, that's indeed what it says.  And it solves the problem.

Nicely done.

Except for two things.

One, I'm confident that's not what the Legislature actually meant.  If only because the next paragraph of the statute clearly and expressly contemplates that judges after 2008 might not be paid this amount.  A provision that would be complete surplusage if the statute means what the Court of Appeal says it means.  Justice Bedsworth does some fancy footwork here by saying that the first paragraph is still unambiguous, there's a (totally routine) severance provision, etc.  Fair enough.  But the reality is that we're totally making up a statute, I believe, that the Legislature totally didn't intend.  Yeah, they said it.  But that's not what they meant.  Because their knowledge of grammar is much inferior to Justice Bedsworth's.  And I'm not sure that making up a statute that the Legislature didn't intend is the right way to solve a problem.  Even if that's indeed what the statute facially says.  (As indeed it does here.)

Second, I wonder if Justice Bedsworth's solution resolves this dispute, but creates even more difficult ones down the road.  Sure, we've "solved" the present constitutional problem by saying the everyone (even post-2008 judges) is entitled to get.  But I bet that's not how the statute was actually interpreted and applied by the counties at the time.  Which means the Court of Appeal's now likely bought itself yet another lawsuit; this time, by the post-2008 judges who didn't receive their supplemental benefits and now claim they're entitled to 'em.  Enjoy that one.  Since, yeah, they seem like they're entitled to win.

Plus, under the Court of Appeal's interpretation, aren't the 2008 benefit levels now set in stone?  Justice Bedsworth rightly tells the Legislature to get on the stick and to solve the problem that the same level of judges are getting paid different amounts in different counties.  But under today's Court of Appeal decision, the counties themselves can't solve this problem; e.g., Inyo isn't allowed to pay its judges the same as those in L.A. County because the statute sets the 2008 level of compensation as an unalterable amount (e.g., every county must "pay[] the benefits on the same terms and conditions as were in effect on that date).  It also means that if L.A. County, or any other county, at all changed from 2008 to 2015 any of the terms and conditions of its cafeteria plan, for any judge, boom, there's yet another lawsuit.  Since that's illegal too.

So, yeah, today's Court of Appeal decision solves a problem.  A big one.

But I wonder if it really accomplishes its stated objective.  Since the result of today's decision might be an even bigger -- and worse -- mess than that which preceded it.

Holloway v. Quetel (Cal. Ct. App. - Dec. 14, 2015)

It's tough to get a default judgment entered in your favor when you're an incarcerated pro se litigant.

But the Court of Appeal helps.

Friday, December 11, 2015

Javorsky v. Western Athletic Clubs (Cal. Ct. App. - Dec. 11, 2015)

You can charge older people more for goods and services than young people because the former have more money than the latter.

So holds the Court of Appeal.

I'm sure that the fancy-schmancy "luxury health" fitness club in the Bay Area here decided to charge 18 to 29 year-olds a (much) lower monthly fee than its older patrons because they were concerned that single people in their 20s in the Bay Area had much lower disposable income than their regular clientele.  Definitely.

It's not that the fancy club wanted to encourage the young and fit to populate its club as opposed to the old and pot-bellied.  No.  Definitely not that.  Had nothing to do with that.

It's just that 20-somethings that frequent luxury fitness clubs in San Francisco have much less money to spend on such things than 30- to 40-year olds with families.

Yep.  That's why.

(Sarcasm alert)

Thursday, December 10, 2015

Kirby v. County of Fresno (Cal. Ct. App. - Dec. 1, 2015)

In some ways, opinions like this one are depressing.  But in other ways, I could care less.

California voters passed the Compassionate Use Act, and then the Legislature passed the Medical Marijuana Program, in order to allow qualified patients to cultivate and use the drug or medicinal purposes.  But then recalcitrant municipalities -- like the County of Fresno here -- used their local zoning power to outlaw marijuana dispensaries as well as cultivation.  All of it.

So you could use marijuana.  It'd just remain illegal (and impossible) to buy and/or grow it.

The California judiciary concluded, as in the present case, that these municipal provisions are just fine.  They don't conflict with the voter-approved initiative or the Legislature's MMP.  Yes, a county can't criminalize the thing, so those provisions would be struck down.  But it can nonetheless make it impermissible -- e.g., a $1000/plant/day fine -- to actually grow the stuff.  Or sell it.  Anywhere in the county.  Effectively making the CUA and MMP meaningless.  Since if you can't get the drug, you can't use it as medicine.

On the one hand, this seems to me an extremely cramped version of preemption.  And overlooks the interplay between voter-approved initiatives that desire X and localities that deliberately attempt to frustrate X in the guise of ostensible police powers.

On the other hand, okay, fine.  The County of Fresno wins this battle.  Go ahead and make this stuff impermissible via zoning.  It's going to happen anyway.  It's just underground like it was before the CUA and MMP.  Congratulations.

Plus, now that we know how places like this respond to voter-approved initiatives, we'll be sure to make sure that the next ones prohibit you from engaging in similar chicanery.

In other words, as Mr. Townshend says, "We won't get fooled again."

Wednesday, December 09, 2015

Crawford v. J.P. Chase Morgan (Cal. Ct. App. - Dec. 9, 2015)

Justice Gilbert begins today's opinion by saying:

"The practice of law can be abundantly rewarding, but also stressful. The absence of civility displayed by some practitioners heightens stress and debases the legal profession. Those attorneys who allow their personal animosity for an opposing counsel or an opposing party to infect a case damage their reputations and blemish the dignity of the profession they have taken an oath to uphold."

I couldn't agree more.  Hear, hear.

The next paragraph of Justice Gilbert's opinion reads:

"In Green v. GTE California, Inc. (1994) 29 Cal.App.4th 407, 408, we said counsel's comments and actions at a deposition made the term "civil procedure" an oxymoron. In comparison to what occurred in this case, one could almost say the offending counsel in Green conducted himself with decorum."

Wow.  Really?!  This should be interesting.

Next paragraph:

"Here the practice of law became more than stressful; it was dangerous. An attorney representing himself threatened defendants' counsel with pepper spray and a stun gun at a deposition. When defendants moved for terminating sanctions, plaintiff filed an opposition that was openly contemptuous of the trial court. Such conduct can have consequences. (See In re Koven (2005) 134 Cal.App.4th 262.) The trial court granted defendants' motion for terminating sanctions. Plaintiff appeals the ensuing judgment. We affirm."

Dude!!!  You're kidding me, right?!  Threatening opposing counsel at a deposition with pepper spray and a stun gun?!  No way.

Yes.  Way.

The relevant conduct at the deposition included the following.  And I'm not even going to talk about all the crazy stuff that went on in this litigation beforehand:

"[The witness] and Crawford appeared [for a deposition] on April 21. Immediately after [the witness] was sworn, Crawford pointed a can of pepper spray at counsel's face from a distance of approximately three feet. Crawford said, "Mr. Traver [Chase's counsel], if things get out of hand, I brought what is legally pepper spray, and I will pepper spray you if you get out of hand." Crawford then produced a stun gun, pointed it at Traver's head, and said, "If that doesn't quell you, this is a flashlight that turns into a stun gun." Crawford discharged the stun gun close to Traver's face. Traver terminated the deposition."

Wow.  I don't know any other way to say it.  Wow.

How Mr. Crawford thought that'd be okay is beyond me.  Way beyond.

Oh.  One more thing.  Mr. Crawford is an attorney.  A graduate of California Western School of Law (down here in San Diego).  Albeit, as of earlier this year, no longer eligible to practice law pursuant to disciplinary charges brought against him.


This is just not the way you practice law.  Or even practice life.

So learn from Douglas Crawford's mistakes.  Someone who, I learned just a second ago, lives less than a mile from me.

To reiterate:  Yikes.

Leave those stun guns and pepper spray at home.

In Re Dakota J. (Cal. Ct. App. - Nov. 23, 2015)

"In October 2014, the Department of Children and Family Services (Department) received an anonymous referral regarding Faith. In response to the referral, a Department social worker attempted to visit mother and Faith at the hotel where they were living. Mother refused to open the door to her hotel room or to speak with the social worker."

That's not good.

"A few days later, another social worker attempted to visit mother at the hotel. Although mother initially opened the door to her room, when she learned the social worker was from the Department, she responded with profanity and threats of violence, then slammed the door."

That's worse.  Repeating the same problem that transpired earlier.

"At the social worker’s request, officers from the Inglewood Police Department came to the hotel to assist with the Department’s investigation. Mother refused to open her hotel room door, and would not comply with the officers’ verbal request to allow the social worker to see Faith and assess her condition. After the officers learned that there were outstanding warrants against mother, they obtained a key from the hotel attendant and opened the hotel room door. The officers entered the hotel room and observed Faith sitting on the bed. Mother said to the officers, 'I have a right to kill you here because I don’t like cops. I have a right to murder you here now that you are inside my home.' Mother attempted to strike the officers and, after a brief struggle, one of the officers used a Taser to subdue her. Mother was subsequently hospitalized with a broken arm."

That's even worse.  Claiming that you have a "right" to kill police officers, and then apparently attempting to do so, is not a good sign.  That sort of makes one wonder if you might have other beliefs that may endanger your children.

"With mother’s consent, the Department placed Faith temporarily with a family friend, Dorothy W., while mother was in the hospital. During an initial interview, Faith told the social worker she was nine years old but did not go to school. Faith said she left the hotel room only occasionally, when she would go with her mother to buy cigarettes. Faith also disclosed that mother smoked cigarettes and 'other stuff.'"

Ugh.  As I had suspected.

"The Department conducted a comprehensive investigation of the family over the next several weeks. After mother was discharged from the hospital, a social worker visited mother and Faith at Dorothy’s home. Mother appeared frustrated by the investigation and denied neglecting Faith. Mother initially refused to answer the social worker’s questions, stating 'you guys are in the process of me being in the Cold War. It’s international elite conspiracy. I don’t need to answer you.' Mother later explained to the social worker that she had a microchip implanted in the left side of her neck behind her left ear to protect her. Mother stated she 'did not abuse the power of the microchip even though she could have used it to find out classified information . . . .'

Mother became increasingly agitated during the interview at Dorothy’s house and asked the social worker if Dorothy could join them. When the social worker stated the interview was intended to be confidential, mother responded, '[t]here is nothing confidential with me because I am sure the people at pentagon [sic.] are listening through the microchip.' Mother also said the microchip implanted in her head sent her visual images, and the people watching her were 'mixed people who were alien species that look like people,' and were 'everywhere.' Mother stated she taught Faith how to identify the aliens because most people cannot recognize them and they can come through the television. She told the social worker she had been seeing white flies flying all over her recently, and also explained that the moon is a holographic satellite."

Oh my.  So it's even worse than I suspected.

"With regard to Faith, mother confirmed she was being homeschooled, but acknowledged the homeschooling was not being overseen by any educational entity. Although mother denied taking Faith to beg for money, she admitted that they 'go out to do ‘freedom of speech stuff’ which is asking for money.' Mother claimed Faith had been receiving regular medical care, but refused to provide the name of any physician who had ever treated Faith. Mother also acknowledged that Faith did not receive immunizations because 'they are poisonous,' and did not see a dentist because dentists are 'scandalous and the fluoride in the toothpaste is poisonous.'"

Say no more.  I get it.  That's all I really needed to hear.  (Though I appreciate the subsequent comment that "I don’t have to do anything that you guys said and I am not taking her to Harbor UCLA. Those government hospitals are where they implant microchip in people. I think you are working with the Zulus and you seem to be an agent.")

Tuesday, December 08, 2015

Richey v. Dahne (9th Cir. - Dec. 8, 2015)

This opinion helps give you a sense of the actual workings of the administration exhaustion process in prisons:

"As an inmate at the Stafford Creek Corrections Center, Richey filed a grievance on November 11, 2011, alleging that a guard denied him his “right to yard, a shower, and clean underwear.” Richey alleged that he did not know the guard’s name and that he described her “accurately” as an “extremely obese Hispanic female guard.” The grievance was returned to Richey with a note to “Rewrite- appropriately. Just stick to the issue of what happened, when, who was involved.” Richey submitted a revised grievance on November 17, 2011, containing similar allegations and similar references to the guard’s weight, with the words “who,” “when,” and “what happened” inserted into the narrative. The grievance was again returned to him with an order to “Rewrite as directed. Hispanic Female is adiquit [sic]. Extremely Obese is unnecessary and inappropriate.”

Rather than rewrite the grievance, Richey wrote a kite to the grievance coordinator on November 28, 2011, asking for clarification of the word “adiquit”and explaining that his description of the guard’s weight was “necessary and appropriate in helping him identify her,” as he did not know her name. He asked the coordinator “not to punish [him] by rejecting [his] grievance because [the coordinator] disagreed with [his] choice of language.” When Richey did not receive a response, he wrote another kite on December 7 asking “ARE YOU GOING TO PROCESS MY PROPERLY SUBMITTED GRIEVANCE OR WHAT? I’M NOT REWRITING IT SO DO YOUR JOB AND PROCESS IT.” Dahne responded in writing, “No, due to your decision not to rewrite as requested your grievance has been administraitevly [sic] withdrawn.”"

Not impressive.


Monday, December 07, 2015

People v. Dealba (Cal. Ct. App. - Dec. 7, 2015)

When I first started reading this opinion, I thought it was self-evidently correct.  But the more I thought about it, the less convinced I became.  Follow me on this:

It's battery when you hit someone.  It's assault when you swing at 'em.  That's what I remember from first-year law school.  Or something like that.

The actual doctrine is a bit more sophisticated than that, of course.  But those are the basics.

Now let's make it more complicated.  Imagine that Defendant (D) hits Victim (V) with a car.  D is still guilty of battery.  It's true that the car, rather than D, hit V.  But that doesn't matter.  V was still hit.

Ditto if D spits at V.  D caused the spit to fly, and it hit V.  That's battery.  And the slightest touching will qualify as battery.  If the spit had not hit V, it'd still be assault.  But it did.  Ergo battery.

Everyone agrees on everything I've just said.

Now, what about when a car driven by D hits a car driven by V?

In normal circumstances, I'd think that was clearly a battery too.  I'm imagining, for example, a head-on collision.  It's true that D didn't personally hit V.  It's also true that the car driven by D didn't itself hit V.  But the car driven by D nonetheless made something hit V; namely, the steering wheel, or the windshield, or whatever other part of the car V hit once she crashed.  That seems to me to count as battery as well.  If you do something that causes something else to hit the victim (or the victim to hit something else), that counts as battery.  You've put the whole process into motion, and that process resulted in victim getting hit.  Battery.

But now take a different kind of car accident.  Here, D's car hits V's car.  But V doesn't slam against anything.  There's no crash.  Is that battery?

Well, geeze, I don't know about that.  Take a tiny little tap on the rear fender, for example.  V barely feels it.  That might be a lot of things.  It might even be assault.  But is it really battery?

I think not.  Why not?  Because if the Victim didn't hit into anything, then there's not the "hitting" that I think is the essential element of battery.  (Technically, "touching," but I'll use the vernacular term instead.)  Victim doesn't hit anything, victim's not a victim of battery.  Right?

And that's true even if Victim had to do something in order to avoid the touching.  Say, for example, that D takes a swing at V, but V swerves out of the way, so does not get hit.  That's assault, for sure.  But it's not battery.  No one was actually hit.

Ditto for the tap on the fender, I think.  V didn't actually hit into anything.  So D isn't guilty of battery.  With me so far?  Or have I already screwed things up, in your mind?  Hopefully not.

So, with this backdrop, we're now to the present case.

Here, it's more than a tap on the fender.  Not infinitely more, mind you.  But it's sort of a side-swipe.  D drives along the side of V's vehicle and deliberately slides over into it.  Puts some scratches on the side of the vehicle.  Almost knocks off a rear view mirror, which is left dangling on some wires.  Less than a ram, but more than a tap.

What about that?  V says she was scared that D might run her off the road -- again, that's definitely assault, but we're talking about battery -- so had to grip the steering wheel tightly and correct to the left to avoid hitting other cars.  Which, to be clear, she never in fact hit.


The Court of Appeal says yes.  What was the "touching" at issue?  Justice Edmon says it's the fact that the victim had to correct the steering wheel; that, essentially, the force applied to the car "made" the steering wheel touch her, or something like that.

Again, when I first read the facts, I thought that whacking someone's car with your own car had to be battery, so was on board with this result.  But the more I think about it, the more I think, nope, in fact, that's not actually battery.  (Again:  It's definitely assault, as well as potentially other crimes, so don't think we're actually letting the guy go free.  The question is whether it's battery.  Period.)

Justice Edmon admits that there's no real precedent on this point.  But grabs two out-of-state cases to say that it should count as battery.  Put to one side the actual facts of those cases (and the fact that they are admittedly non-controlling); i.e., that in one of 'em, the defendant "entered the vehicle, held her down on the car seat, again threatened to kill her, and began striking her in the face with his fists [and] then choked her until she was unconscious."  In both of these cases, the impact was infinitely more severe than exists here:  in the first case, the victim was forced off the road, and in the second case, the collision spun the victim's car around.  When you're forced off the road and/or spun around, your body almost certainly gets smacked around; your head hits the steering wheel, your arms hit the seat, etc.  Whereas, in the present case, there's admittedly no physical contact.  With anything.  The only thing the victim says transpired is that she freaked out -- which, again, is assault -- and had to grip the steering wheel and make sure she didn't whack into the other parked cars on the road.

The Court of Appeal holds that's enough for battery.  That "it was precisely D.D.’s struggle to keep her Volkswagen from veering into the parked cars that constituted the unprivileged 'touching' inflicted on her by Dealba" since she "had to grip the steering wheel tighter and struggle to keep the Volkswagen from crashing into cars parked along the curb."


She was already touching the steering wheel.  Admittedly, she had to touch it a little bit harder, as well as turn it, as a result of defendant's conduct.  But that's not the kind of "touching" that we are usually talking about with battery.  We're talking instead about things had aren't previously touching starting to touch.  Spit with body.  Head with windshield.  Fist with face.  This seems qualitatively different.  And for good reason.

Indeed, if the Court of Appeal is right, I can think of lots of assaults that suddenly become battery.  D throws a rock at V's car.  The rock misses, but causes D to turn the steering wheel in fear (or in order to avoid the rock).  Now it's battery, right?  Because the D caused V to manipulate the steering wheel and that constitutes a sufficient touching.

Or take even your run of the mill assault.  D is in a bar and throws a punch at V.  V sees the intended punch and shifts his weight to the left, successfully avoiding the punch.  Under the Court of Appeal's analysis, the "struggle" to avoid the punch would seem to create a battery, as V was forced to change the degree of pressure on his pivot foot, which was previously touching the floor, in order to avoid a collision.  So just like the victim in the present case was "hit" by the steering wheel, the victim in that run-of-the-mill assault case would seemingly have been "hit" by the floor.  Increased pressure on both in order to avoid a collision after all.

That can't be right.

I admit that there's a fine line between assault and battery.  But it's still a line.  There needs to be a touching.  In your classic head-on collision, or even in a "run off the road" or "pit" example, that'll be easy to establish, because it will in fact have transpired.

But that didn't happen here.  The victim was legitimately frightened.  That's assault, and defendant should justly be imprisoned for it.

But it's not battery.  Because she didn't hit anything.  And the fact that she had to move -- or move the steering wheel -- to avoid such a collision doesn't make it any different than your classic assault, but not battery, in a bar fight.

So I initially thought that the Court of Appeal was right.  But I've decided that I think it's wrong.  At least on the evidence presented here, there was no touching.  So it's assault, not battery.

In Re Marriage of Smith (Cal. Ct. App. - Nov. 20, 2015)

This is an ugly divorce.  Made slightly less ugly by the equitable (and eminently correct) decisions of the trial court and Court of Appeal.  But ugly nonetheless.  A taste:

"The marriage of Mark and Kierstin was dissolved in 2002, but they have remained engaged in litigation regarding child custody and support, which has expanded to involve Cindy, who is Mark‟s current wife. . . . The trial court heard argument regarding attorney fees and sanctions on July 3, 2013. On November 4, 2013, it filed its order, making findings of fact and awarding $124,352 to Cindy, and $151,967, minus a specified offset, to Mark. . . .

The trial court‟s findings of fact included the observations that “[Kierstin] and her counsels‟ zealous advocacy crossed the line and became unreasonable, unduly burdensome and at times an exercise in bad faith. [¶] The court finds that the underlying case was not complicated but was made complicated by the overzealous litigation on [Kierstin‟s] counsels‟ part and [Kierstin‟s] complete abandonment of the litigation process.” The trial court described the proceedings as a “morass of litigation, the primary purpose of which was to ruin [Cindy and Mark] financially.”

The trial court further found Kierstin to have “no concern about the level of her attorney fees because her father [Robert Hemborg] was committed to paying those fees and costs whatever the amount.” 3 The trial court noted that “Robert Hemborg testified at trial that [Kierstin] was due to inherit six (6) million dollars upon his death,” and found that the amounts given to Kierstin for her fees and costs were “a loan against [Kierstin‟s] inheritance” . . . . The trial court further described Mr. Hemborg as testifying that “he intended on paying all of [Kierstin‟s] prospective fees that she incurred for her attorneys as well as any attorney fees and/or sanctions that may be ordered against her regardless of the amount,” as well as any fees and costs on appeal. In contrast, the trial court described Mark and Cindy as having “no savings or other liquidity that would enable them to finance the litigation on the same level as [Kierstin],” and observed that they “were forced to use credit cards to finance their attorney fees and costs.”

[Footnote]:  The trial court found Kierstin‟s attorneys had already been paid $322,653.39, and were owed another $19,975.50, as of July 3, 2013. In comparison, as of that date Mark had paid $123,257.65 to his attorneys, and owed another $103,559.30. As of June 20, 2013, Cindy had paid $54,009.06 to her attorneys, and owed another $122,660.34."

What a waste.

Friday, December 04, 2015

U.S. v. Lloyd (9th Cir. - Dec. 4, 2015)

When someone asks you to invest in a movie, don't walk away.  Run.

Because this may well be what you have to look forward to.

From Mexico With Love.  $14.2 million raised from investors.  $800,000 gross revenues.

Red Water.  Raised $2.8 million from investors.  Spent only $23,000 to make the movie.

The list continues.

Don't do it.  Seriously.  Don't.

Lyall v. City of Los Angeles (9th Cir. - Dec. 4, 2015)

You can tell that a lawsuit has taken a while to wind its way through the judicial system when the relevant facts say:

"The event was scheduled for the night of November 16 and was to feature several musical performers, along with artists working on screen prints and drawings. The organizers publicized the event broadly through MySpace and various email lists, and approximately 100 people attended."

MySpace.  How 2008.

Thursday, December 03, 2015

In Re Amanda A. (Cal. Ct. App. - Nov. 20, 2015)

Read the first eight pages or so of this opinion if you want a depressing glimpse into the life of a young woman.

Amanda A. is lost.  She might be lost for her entire life.  It's a life without meaning.  And the system is really at a loss for what to do here.  Understandably so.

It's got to be frustrating for everyone involved.  From the social worker to the trial court to the Court of Appeal.

A wasted life.  At least thus far.  Without much concrete hope of it getting better anytime soon.

Wednesday, December 02, 2015

Daniel v. Ford Motor Co. (9th Cir. - Dec. 2, 2015)

This is a crush.

Plaintiffs bought a Ford Focus between 2005 and 2011 and allege that it has a rear suspension alignment defect that causes premature tire wear; i.e., that the Focus required new rear tires for the first time between 12,000 and 20,000 miles.  They bring a class action raising a variety of statutory and warranty claims against Ford.

Ford moves for summary judgment.  The district court grants it.

The Ninth Circuit reverses.  On virtually every single point and cause of action.

So if you purchased a (crappy) Ford Focus in California during the relevant time period, my guess is that you're going to get some relief at some point.  Not now.  But eventually.

'Cause this case is going to settle.

Tuesday, December 01, 2015

People v. Williams (Cal. Ct. App. - Dec. 1, 2015)

There's a fine line between "dangerously mentally ill" versus "dangerously incredibly strange".  But it's a meaningful one.

Even if one's reaction might principally be to want some individuals in both categories to stay in a hospital forever rather than being let out on the street.

Take Mr. Williams, for example:

"In early 1993, defendant, then 51 years old, was arrested for possession of methamphetamine; he was also found in possession of drug paraphernalia and a loaded firearm.

While on bail in June 1993, defendant fired a machine gun and injured a police officer, and the next day shot at an officer and a police dog. A jury found him not guilty by reason of insanity (NGI) of two counts of attempted murder (§§ 664/187), two counts of assault on a custodial officer with great bodily injury (§ 245, subd. (b)(3)), unlawful possession of a machine gun (former § 12220), and interfering with a dog being used by a police officer (§ 600).

Defendant’s adult criminal record also included molestation of his 10-year-old stepdaughter, three convictions for driving under the influence of alcohol or drugs, and carrying a concealed weapon. He had no juvenile criminal record.

Two mental health professionals evaluated defendant in 1993. Both noted that defendant seemed angry and paranoid toward the police department and the justice system, likely due to abuse of methamphetamine and alcohol. One evaluator also opined: “[Defendant] is extremely rigid, and as long as his views of circumstances of the world is [sic] listened to, he is calm and cooperative. However, any attempt to confront that rapidly leads to escalation and probably to explosive behavior . . . and beliefs that he has a right to live his life and behave as he sees fit. This is not only the basis of his delusional disorder, but I think also on the basis of his paranoid personality.”

On July 11, 1994, defendant was committed to a state mental hospital. (§ 1026.) His maximum commitment date was April 5, 2014.

Defendant was admitted to Atascadero State Hospital in June 2009 after being transferred from Napa State Hospital, from which he had attempted to escape. When admitted, defendant claimed he had no motivation to be psychiatrically stable, to take medication, to avoid harming himself or others, or to avoid illicit drugs. Thereafter, he persistently refused to attend therapeutic groups in the hospital. . . .

According to the earliest report, defendant’s thought content was “devoid of overt delusions, hallucinations, and homicidal/suicidal ideation”; however, “insight and judgment are impaired.” His current offense was “fueled by his concurrent use of methamphetamine,” but also by his “persecutory delusions against police officers, rigid personality structure, and impaired insight/judgment.” He remained “defiant and oppositional.” His “deeply-rooted personality disorder” was the most likely cause of his “ongoing difficulties.” He denied mental illness, attributing his current offense entirely to methamphetamine use but refused to participate in substance abuse recovery treatment, and had no relapse prevention plan. Although he had not been violent in the past 12 months, his outstanding personality difficulties, combined with a relapse into alcohol and drug use, could “easily push him over the edge and lead him to act out violently with lethal consequences.” Defendant said he planned to “wait here for another five years until my commitment expires.”"