Monday, February 29, 2016

City of Corona v. AMG Outdoor Advertising, Inc. (Cal. Ct. App. - Jan. 26, 2016)

The City of Corona has banned all new billboards, but grandfathered old billboards.  AMG owns and operates some billboards, and wants to put up a new one.  One of its employees goes to the City planning department for an application for a permit to put up a new billboard.  But the City planning official tells her that she can't give her an application because no new billboards are allowed.  The law's crystal clear.

Weeks later, AMG simply puts up a billboard.  No permit.  No application.  Nothing.

The City files suit.  AMG makes meritless defenses and loses.  Loses in the Court of Appeal as well.

Rightly so.

I'd have thought that the City of Corona might actually want to criminally prosecute these guys.  This was a clear (and brazen) violation of the law.  I'd have also thought that the Court of Appeal might have wanted to sanction 'em as well.

Apparently not.  AMG just loses.

One less billboard in Corona.  (Which has plenty, as I can personally attest, since I was there on Sunday.)

Taylor v. Beard (9th Cir. - Jan. 21, 2016)

That's a crush.

In 2014, a Ninth Circuit panel issues an opinion that grants habeas relief.  Judge Schroeder writes the majority opinion, which is joined by a district court judge sitting by designation.  Judge Clifton dissents.

Fast forward to 2016.  The en banc court reconsiders the case.  Judge Schroeder, who's senior, is not on the en banc panel.  Neither, obviously, is the district court judge.  Judge Clifton, by contrast, gets selected for the en banc panel.  Alongside ten of his colleagues.

The opinion of the en banc court is now written by . . . Judge Clifton.

Joined by every single other judge on the en banc panel.


Friday, February 26, 2016

Reading Int'l v. The Malulani Group (9th Cir. - Feb. 25, 2016)

How often do you see the Ninth Circuit strike a reply brief?  Not often, I'd imagine.  But then again, how often do you see the Ninth Circuit disqualify an attorney on appeal?

Both happen here.

For good reason, though.  There is, in fact, a conflict of interest.  Albeit an imputed one.  When a main guy working on X changes firms, the new firm can be disqualified from working on an appeal that's substantially related to X.  Even if it screens the new partner.  (At least under Hawaii law.)

It's true that screening generally works in Hawaii.  But not if the disqualified lawyer actually acquired confidential information relating to the representation.  Which he did here.

Plus, this is no tiny guy.  He's a major player.  Both in the litigation and in the new firm.

So the party here has to hire a new lawyer.  As well as have that new lawyer sign off on the reply brief prepared by the old firm.

Which I bet will take about 20 second.  (Though the bill will be for 20 hours.)

Thursday, February 25, 2016

People v. Garcia (Cal. Supreme Ct. - Feb. 25, 2016)

I was critical of the Court of Appeal's opinion when it came out a couple of years ago.  Today, the California Supreme Court reveals that it wasn't too fond of it either.  Reversed.

But there's an interesting debate between Justice Cuellar, who writes the majority opinion, and Justice Kruger (joined by Justice Lui), who concurs.

Everyone agrees that the guy here should have only be convicted of one burglary, rather than two.  I said that back in 2014.  Justice Cuellar says that.  So does Justice Kruger.  When someone enters one building intending to commit a felony -- Burglary One -- its not another felony, at least in this case, to then enter a particular room in that same building (alleged Burglary Two) to commit another felony.

One building, one felony.  Simple rule.

Justice Kruger would have that largely be the rule.  But remember:  She's concurring.

The majority says that's normally the rule.  Since a different rule would make little rational sense.  "Under the People‘s approach, a defendant who entered every room in a single-family home and stole items within, as well as an intruder who repeatedly entered and exited the same room within a store with the intent to commit a felony inside, could be charged with and convicted of multiple burglaries."

Yet the majority says that sometimes you could indeed be charged with multiple burglaries.  Whether that's okay would depend heavily on the facts:

"What we conclude is this: the simple fact that a defendant has committed two entries with felonious intent into a structure and a room within that structure does not permit multiple burglary convictions. Where a burglar enters a structure enumerated under section 459 with the requisite felonious intent, and then subsequently enters a room within that structure with such intent, the burglar may be charged with multiple burglaries only if the subsequently entered room provides a separate and objectively reasonable expectation of protection from intrusion relative to the larger structure. Such a separate expectation of privacy and safety may exist where there is proof that the internal space is owned, leased, occupied, or otherwise possessed by a distinct entity; or that the room or space is secured against the rest of the space within the structure, making the room similar in nature to the stand-alone structures enumerated in section 459."

I thought when I first read this rule that it was an incredibly messy one.  And it totally is.

But after reading the majority opinion, I at least understand a part of the impetus for the mess.  If, for example, you break into an apartment building, and enter three different apartments, I get that maybe that should be multiple burglaries.  Or if you break into one apartment, rented by two people, and the door to each occupant's bedroom is locked with a padlock, since it's not really "shared" space, I can see why some people would want that to be two (rather than one) burglaries.  The "expectation of privacy" caveat is similarly motivated, I think, albeit even messier.

That said, I am sympathetic with Justices Kruger and Liu, who say that the mess these caveats make may not be worth the effort.  Maybe a more bright-line rule would make more sense.

Regardless of whether Justice Cuellar or Kruger has the better of the argument, however, both of their positions are better than the Court of Appeal's holding.  Way.

So great result.

Burglary in California is still a total, complete mess.  But at least it's one percent less irrational and counterintuitive today than it was yesterday.

Wednesday, February 24, 2016

Nozzi v. HACLA (9th Cir. - Jan. 29, 2016)

When you're planning on filing an amicus brief, it's often better to make it short and to the point, rather than long and plodding.  Oh, yeah.  And it's pretty important to file it on time.

"The petition for leave to file a late, oversized brief of amicus curiae on behalf of the Housing and Development Law Institute is also DENIED."

You don't want that to happen to you.

Tuesday, February 23, 2016

Oregon Restaurant & Lodging Ass'n v. Perez (9th Cir. - Feb. 23, 2016)

The dispute is about statutory interpretation and Chevron deference.  Particularly as applied to circuit precedent.

Prompting a serious disagreement between Judges Pregerson and (Randy) Smith.

There's a prior Ninth Circuit opinion that says that a federal statute allows employers to do X.

But, after that decision, the Department of Labor issues a regulation that interprets that statute and says that employers cannot, in fact, do X -- that this practice indeed violates the statute.

Are employers now prohibited from doing X?

Judge Pregerson believes so.  He, along with Judge Owens, says that the prior case didn't involve Chevron deference -- it merely was a straightforward (nondeferential) interpretation of the statute -- and after applying deference, the DOL's interpretation is a reasonable one, so that distinguishes the present case from the one before.

Judge Smith disagrees.  He thinks that the prior case said that the statute was clear, and that if the law's clear, agency interpretations don't matter.  Judge Smith also has some strong words for his colleagues, and begins his dissent by saying:  "Colleagues, even if you don’t like circuit precedent, you must follow it. Afterwards, you call the case en banc. You cannot create your own contrary precedent."

Two competing visions.

P.S. - Not a good past ten days for Eugene Scalia, who argued the case for the Wynn Las Vegas.  First, his father suddenly dies.  Now, this.

Monday, February 22, 2016

Bennett v. Bank Melli (9th Cir. - Feb. 22, 2016)

I'm not sure I'm smart enough to figure this one out.

Judge Kozinski authors an opinion in August of 2015.  It's unanimous.  No biggie.

Fast forward to today.  There's now a revised opinion.  But it's no longer unanimous; now, the district judge sitting by designation files a concurrence.  And the majority opinion is by Judge Thomas.

Oh, yeah.  One more thing.  Judge Thomas wasn't on the original panel.  Judge Kozinski's now off the panel, and Judge Thomas was drawn to replace him.


One might perhaps easily explain the concurrence.  Maybe there was a change of heart after the losing party filed a petition for rehearing.  Maybe Judge Thomas edited the opinion in a way that the district judge didn't like.  Lots of things can happen.  Rare.  But, still, they happen.

Why Judge Kozinski left the panel is even harder to explain.  Presumably he recused himself.  But I don't see why offhand.  He didn't recuse himself initially.  What changed?  Moreover, it's not like the subject matter is something that Judge Kozinski would likely be personally interested in.  It involves unsatisfied claims against Iran.  Now, maybe Judge Kozinki has a personal interest in that -- one that arose all of the sudden.  But I doubt it.  Seems weird.

Not that it's a huge issue.  The case comes out the same way.  The victims here are going to get some fraction of their judgments against Iran.  I'm far from bummed about that.

But strange.  Very strange.

Friday, February 19, 2016

CIFAC v. Ross Valley Sanitary Dist. (Cal. Ct. App. - Feb. 18, 2016)

This makes sense.

I'm not talking about the opinion.  Though that makes sense as well.  I'm talking about the underlying factual regime.

Here's the basic deal:

Sewer pipes get old.  You probably know that already.  They need to be replaced.  But -- as you also likely already know -- we're terrible lately about infrastructure repairs.  Just terrible.

Even in Marin County.  The Ross Valley Sanitary District maintains around 200 miles of sewer pipes in that tony enclave.  Most of which are "neighborhood" lines less than ten inches in diameter.  The District knows that around 139 miles of those pipes (!) eventually need to be replaced because their old and crumbling.

Traditionally, the District repairs these things through "spot repairs" -- basically, digs 'em up when they have a big problem and replaces them.  But that's a pain.  Fortunately, recently, the District discovered a new way of potentially dealing with this problem.  "In 2010, the District began experimenting with this new technique, which allows it to replace sections of sewer line by digging two holes about 350 feet apart, and then using a hydraulic pump to pull a torpedo-like device through the old pipe, bursting the old pipe and leaving a new pipe in its wake. With pipebursting, the District can replace 350-foot sections of pipe in about three days and without trenching, rather than engaging in weeks of work-intensive spot repairs."

Sounds cool.  Love it.  Seems like that's what you should do.  Get on it.  Great idea.

The District thinks so as well.  So it wants to hire some new "pipebursting" employees whose job it would be to implement this new technology.

Finally.  Government at work.  Rational.  Expeditious.  Infrastructure repair.  Everything's awesome.

But when the District lets the public know that's its plan, someone objects.  The Construction Industry Force Account Council, Inc.  You can probably figure out who this trade association represents.  CIFAC says that the District can't do this because there's a statute that says that every project over $15,000 needs to be put out to a public bid.  And even though any particular pipebursting project with the new employees wouldn't be over $15,000, the total salary of these new employees -- and the value of all the projects combined -- would be.  So the District can't do it in-house.  It'll have to hire outside people.

So the trade industry sues.  The trial court agrees.  And the District gets enjoined from hiring its new crew.

My reaction to this set of facts was not positive.  I see no reason why the District can't efficiently employ a crew to do what it's always done -- albeit in a different way -- in house.  I know perfectly well why there's a trade association that's suing.  But I don't like it.  It exemplifies classic agency cost problems.

Fortunately, the Court of Appeal reverses.  It's okay for the District to do it this way.

Thank goodness.

I know that we often want competitive bidding and lower-cost solutions rather than entrenched government employees.  But, here, I think the equities are exactly in the opposite direction.  My sense -- which I freely admit is not especially informed in this area -- is that, in the present case, it's the outside entitles that are the entrenched ones.  Seeking to preserve their turf against a more efficient centralized competitor.

But they lose.  And I'm happy about that.

So pipeburst away, Marin County.  Go crazy.

It's okay.

Thursday, February 18, 2016

People v. Goolsby (Cal. Ct. App. - Feb. 18, 2016)

The saga continues.  Or, perhaps, ends.

It starts (for our purposes) in 2013.  Then continues in 2014.  With a twist in 2015.

But then, in 2016, it goes back to where it started.  Mr. Goolsby gets off on a "technicality".

Albeit one that's enshrined in the Bill of Rights:  the Double Jeopardy Clause.

Sifuentes v. Brazelton (9th Cir. - Feb. 18, 2016)

The prosecutor in a first-degree murder case uses his peremptory challenges to strike nine African-American jurors, leaving only one African-American on the jury, which ultimately convicts.

The California Court of Appeal says there's no Batson violation, but the trial court disagrees and grants habeas relief.

The Ninth Circuit reverses.

The panel consists of Judge Ikuta -- who authors the opinion -- Judge O'Scannlain, and a senior district court judge sitting by designation.

P.S. - Amongst the other people he's not especially fond of, the prosecutor admits he's not especially keen on lawyers.  Or teachers, for that matter.  Saying:  "She was a school teacher in 1992 to 1995, indicates fairly liberal. She has a doctorate; she’s a lawyer. I don’t want a lawyer on my jury. I’ve never liked having lawyers on juries. They’re know-it-alls, they inject themselves into the case, they think they can do a better job."

Wednesday, February 17, 2016

Sarver v. Chartier (9th Cir. - Feb. 17, 2016)

This opinion will affect your life.

Not in a big way.  At all.  But it'll affect the types of movies you see.

The Ninth Circuit essentially holds -- for the first time ever -- that the First Amendment trumps California's protection of the right of publicity for movies made about a matter of public interest.

As a result, film makers will now be able to make movies about public figures without buying the rights to that movie from that person (and, presumably, getting her approval of the portrayal).

This particular case involved The Hurt Locker.  The Ninth Circuit assumed (probably correctly) that this movie was indeed based on the life of IED specialist Sgt. Jeffrey Sarver in Iraq.  Normally that would mean that he had a right to publicity (at least in California).  But the Ninth Circuit held that the First Amendment precluded liability for telling the story.  Even though the movie was all about a particular person, the underlying "issues" -- the war in Iraq, the toll of IEDs, etc. -- were matters of public interest.  So the film makers could tell this story through the life of Sgt. Sarver.

This principle extends broadly to a plethora of other movies.  I expect that we'll see its contours played out in litigation during the next decade.  But the opinion is broad enough to cover tons of movies.  Probably books and other media as well.  Which now need not pay characters for their life stories in lots of contexts.


In Hollywood, anyway.  As well as for anyone who consumes the products thereof.

Which is pretty much everyone.

Tuesday, February 16, 2016

Younessi v. Woolf (Cal. Ct. App. - Feb. 16, 2016)

As the legal world continues to buzz about potential nominees to replace Justice Scalia, the hum-drum business of actually deciding appeals continues apace.  Today, fortunately, has a theme.

It's Bad Attorney Day.

From the state side, we have this opinion.  Counsel for plaintiff failed to respond to discovery, failed to oppose a demurrer, and failed to timely amend the complaint, resulting in the dismissal of his lawsuit.


Here's what the attorney says about all this:  "According to [George] Wass, in March he agreed to represent plaintiffs in this action. Wass admitted that he received the substitution of attorney form signed by Drescher on April 1, but claimed he forgot to sign it because he was preparing for trial. Wass denied knowing about the pending demurrers and motions to strike, asserting, 'Drescher did not mention [them],' and his office 'apparently . . . missed' the entries for these pleadings when reviewing the register of actions. But Wass did acknowledge learning of the pending discovery motions. In mid-April, he attempted to discuss them with Woolf's attorney. Opposing counsel told Wass that he could not do so 'until he received the Substitution of Attorney.' According to Wass, he again failed to file the substitution of attorney because he 'got distracted.' Wass claimed he finally learned about the demurrers and the court's ruling which allowed leave to amend in mid-May, and 'just assumed we got 30 days' to file an amended complaint."

Not really how you'd like to permanently appear in the pages of the California Appellate Reports, I'd imagine.

Still, plaintiffs get relief from the Court of Appeal.  Though grudgingly.  "[W]e reluctantly affirm the trial court's order vacating the dismissal."

So that's something.

Meanwhile, on the federal side, we have this opinion.  It's a $2.7 million sanctions award as the "direct result of repeated, deliberate decisions by [attorneys] Hancock, Musnuff, and Goodyear to delay the production of relevant information, make misleading and false in-court statements, and conceal relevant documents."  Judge Watford dissents, and requests rehearing en banc.  But today, that request is voted down.  End of story.

But don't feel too bad for Judge Watford.  He'll just have to settle for the speculation that he may perhaps be the next nominee to the Supreme Court.

Sort of makes up for losing a particular en banc vote, I imagine.

Friday, February 12, 2016

People v. McCarthy (Cal. Ct. App. - Feb. 11, 2016)

A statute says that you can impose a particular form of restitution "for felony violations of" Statute X.

Defendant is convicted of violating Statute Y.  Some, but not all, activities that would violate Statute Y would also violate Statute X.  Including what Defendant did.

But Defendant was not convicted of violating X.  He was only convicted of violating Y.  A different statute.

Does the restitution order permit the trial court to impose the particular form of restitution at issue on the Defendant convicted of violating Statute Y pursuant to a law that says that such restitution may be imposed "for felony violations" of Statute X?

The Court of Appeal says "Yes."

In Re Donovan L. (Cal. Ct. App. - Feb. 11, 2016)

"Shannon was married to Donovan at the time of DJ's conception in 2010 and birth in 2011. In 2010, Shannon had an affair with David and informed him she was pregnant. David did not seek involvement in Shannon's pregnancy or DJ's rearing until he saw Shannon and one-year-old DJ at a shopping center parking lot in July 2012. Seeing a resemblance, David took a paternity test on his own initiative and determined he was DJ's biological father. He told friends and family he was DJ's father and asked Shannon for visits with DJ. She facilitated a few visits between DJ and David, unbeknownst to Donovan.

Shannon and DJ stayed at David's apartment for two weeks in August 2012, when she and Donovan were having marital problems. During that time, Shannon called the police because David locked her out after they fought over child custody. When officers arrived, they found David and DJ 'passed out' on the bed with approximately 50 marijuana plants growing in the apartment. Following this incident, the Agency filed the 2012 dependency petition under Welfare and Institutions Code, section 300, subdivision (b)."

 It's always exciting in San Diego.

Wednesday, February 10, 2016

Catalina Island Yacht Club v. Superior Court (Cal. Ct. App. - Dec. 4, 2015)

Nothing from the Ninth Circuit or California Court of Appeal so far today.

So let's go back a tiny bit and give a cheer for Justice Aronson.

The first paragraph of this opinion makes crystal clear both what the case is about as well as what the relevant rule is:

"May a trial court find a waiver of the attorney-client privilege and work product doctrine when the objecting party submits an inadequate privilege log that fails to provide sufficient information to evaluate the merits of the objections? No."

But that's not all.  Justice Aronson not only tells us what the court can't do, but also tells us what it permissibly can.  Next paragraph:

"When confronted with a deficient privilege log that fails to provide the necessary information to rule on attorney-client and work product objections, a trial court may order the responding party to provide a further privilege log that includes the necessary information to rule on those objections, but may not order the privileges waived based on deficiencies in the privilege log because serving a deficient privilege log, or even failing to serve a privilege log, is not one of the three statutorily-authorized methods for waiving the attorney-client privilege. The court may impose monetary sanctions for providing a deficient privilege log, and it may impose evidence, issue, and even terminating sanctions if the responding party persists in its failure to provide the court with the information necessary to rule on the objections’ merits, but a forced waiver is not authorized by either the statutory scheme establishing the attorney-client privilege or the discovery statutes once the responding party preserves the objections by timely asserting them in response to an inspection demand."

That's exactly right.  It's also an awesome summary of the opinion that follows.  Which explains in exhaustive detail how and why the trial court erred.

And the rest of the opinion is equally clear and concise as well.  Page 9, for example:

"Accordingly, if a party responding to an inspection demand timely serves a response asserting an objection based on the attorney-client privilege or work product doctrine, the trial court lacks authority to order the objection waived even if the responding party fails to serve a privilege log, serves an untimely privilege log, or serves a privilege log that fails either to adequately identify the documents to which the objection purportedly applies or provide sufficient factual information for the propounding party to evaluate the objection. . . .

The propounding party’s remedy when it deems “[a]n objection in the response is without merit or too general” is to “move for an order compelling further response.” [Cite] If the response and any privilege log provide sufficient information to permit the court to determine whether the asserted privilege protects specific documents from disclosure, the court may rule on the merits of the objection by either sustaining it or overruling it as to each document. [Cite]

If the response and any privilege log fail to provide sufficient information to allow the trial court to rule on the merits, the court may order the responding party to provide a further response by serving a privilege log or, if one already has been served, a supplemental privilege log that adequately identifies each document the responding party claims is privileged and the factual basis for the privilege claim. [Cite] In ordering a further response, the court also may impose monetary sanctions on the responding party if that party lacked substantial justification for providing its deficient response or privilege log. [Cite]

If the responding party thereafter fails to adequately comply with the court’s order and provide the information necessary for the court to rule on the privilege objections, the propounding party may bring another motion seeking a further response or a motion for sanctions. At that stage, the sanctions available include evidence, issue, and even terminating sanctions, in addition to further monetary sanctions. [Cite]  But the court may not impose a waiver of the attorney-client privilege or work product doctrine as a sanction for failing to provide an adequate response to an inspection demand or an adequate privilege log."

I can't imagine an opinion making the law any more clear.  On a topic that many, many litigators care (or at least should care) about, and confront daily.


Tuesday, February 09, 2016

Daire v. Lattimore (9th Cir. - Feb. 9, 2016)

Some en banc opinions are hard.  Some en banc opinions are easy.

Today's opinion is an example of the latter.

The panel felt itself bound by circuit precedent.  The en banc court, by contrast, was under no such constraint.  So, based on intervening precedent by the Supreme Court, it overruled that prior circuit authority.

The en banc court was unanimous.  The opinion was per curiam.  The en banc court didn't even need oral argument.  And getting the opinion out took less than a month.

Everything else goes back to the original panel.


Monday, February 08, 2016

In Re Village of Lakeridge (9th Cir. - Feb. 8, 2016)

I think Judge Clifton is right.

It's not that Judge Randy Smith doesn't have a point.  It's a bankruptcy case, and the central issue is a factual one.  So we give lots of deference to the district court.  Which is in substantial part why Judge Smith writes the majority opinion and affirms.  Even though one might get a sense from reading that opinion that Judge Smith isn't so confident that the district court's factual call was necessarily the right one on the merits.

So Judge Smith starts out with a huge lead.  Standard of review.

But Judge Clifton, I think, gets it right.  Yeah, there's a lot of deference there.  But it's not infinite.

I, too, have a definite and firm conviction -- like Judge Clifton -- that the district court's factual finding was wrong.  And the more I think about it, the more confident I am in that regard.

To get a glimpse into the machinations of the underlying transaction, three paragraphs from Judge Clifton's dissent will suffice:

T"he facts make it clear that this transaction was negotiated at less than arm’s length. Rabkin paid $5,000 to MBP (the sole member of the debtor, Lakeridge), for an unsecured claim against Lakeridge nominally worth $2.76 million. MBP did not offer the interest to anyone else. The purchase was not solicited by Rabkin. It was proposed to Rabkin by Kathie Bartlett, a member of the MBP board. There was no evidence of any negotiation over price — Rabkin didn’t offer less, and MBP didn’t ask for more. Rabkin knew little if anything about Lakeridge (or, for that matter, MBP) before he bought the claim, nor did he conduct any investigation to ascertain the current value of that unsecured claim. Even after he purchased the claim, he did not bother to find out more about what it might be worth. Prior to his deposition Rabkin did not even know what the proposed plan of reorganization would pay him for the claim. After he learned that the payment under the plan would be $30,000, he was offered as much as $60,000 for his interest, but he declined that offer.

The motives of MBP and Bartlett are clear and not denied. MBP is the sole member of Lakeridge. The Lakeridge reorganization plan cannot be approved unless there is a class of creditors willing to vote to approve it. Without the sale of this claim to Rabkin and his anticipated vote to approve the plan, that plan is dead in the water, Lakeridge will be liquidated, and there will be no hope for MBP to obtain anything for either the unsecured claim or, more importantly, its ownership of Lakeridge. It may have wanted to recover something from its unsecured claim, but it did not look for the best possible price because its Lakeridge ownership was far more important. MBP was primarily motivated to place the unsecured claim in the hands of a friendly creditor who could be counted on to vote in favor of the reorganization plan, opening the door to the possibility of obtaining approval of the proposed plan of reorganization.

Rabkin’s motivation is a bit murkier, but it is clear that the transaction cannot be understood as a primarily economic proposition on his part. There was no evidence that he had a habit of making blind bets, say by helping out Nigerian princes or buying the Brooklyn Bridge. There is an alternative explanation that makes a lot more sense. As the majority opinion acknowledges, at 6, Rabkin had a “close business and personal relationship” with Bartlett, the person who proposed this transaction to him. I don’t have to know the precise details of the relationship between Rabkin and Bartlett to conclude that it offers the only logical explanation for Rabkin’s actions here. He did a favor for a friend, and if it made some money for himself, so much the better."

Sounds right to me.  X owns a claim benefits if that claim is voted it in his favor, but X can't vote it himself since he's a bankruptcy insider.  So X sells the claim to a friend for $5,000 -- a friend who knows virtually nothing about the deal, votes it in X's favor, and won't sell the claim for ten times what he paid for it (and double what he could possibly hope to achieve in the bankruptcy).  Yes, the lower court said that transaction seemed fine.  But it's not.  It was a sham designed to make the vote happen in X's favor.  I'm convinced of that.  Sufficiently convinced to reverse.  Even on a factual finding.

Judge Smith says that a contrary finding would be a "logical" interpretation of the facts.  That may well be true.  It might be a "logical" conclusion that the investor was just taking a flyer on a $5,000 investment hoping to make money.  That's nothing internally inconsistent -- i.e., illogical -- with such a conclusion.

It's just not a persuasive view -- however logical -- of the facts.  It's way less likely, in my view, than the alternative explanation.  Indeed, on the facts of this case, such an interpretation of the facts may border on the affirmatively implausible.

So I think Judge Clifton has the better of the argument here.

Friday, February 05, 2016

Stuard v. Stuard (Cal. Ct. App. - Jan. 5, 2016)

I'm looking at the caption of the case.  "Stuard v. Stuard".  Divorce case, I assume.

Except it's Jeffrey Stuard v. Matthew Stuard.  No biggie.  Gay divorce case.


Not a family law case at all, then.  Brothers fighting over a will.  Something like that.

Nope.  It's a family law case.  Child custody, even.

It's a case where the grandparents are seeking visitation of their grandchild over the objection of the parents of the child.

Which you see sometimes.

But this case is different.  Because the usual case involves unfit parents.  Whereas here, everyone agrees that the parents are totally fit.  Raising their kid just fine.  Simply don't want the paternal grandparents in the picture.

Okay, then.

My first thought is that I'm fine with the concept.  Grandparents have a connection.  We're talking about the best interests of the child.

Then I read the facts of the case.  The first eight pages or so.  And wow.

I know the Court of Appeal's opinion (rightly) recites the facts in the light most favorable to the party that prevailed below -- in this case, the grandparents.  But as I read the facts, I totally get why the trial court wants the grandparents to be around.  They were totally involved in raising this little kid.  They lived with the parents and were, essentially, the primary caregiver for the kid.  And the dispute about visitation basically arose when the father -- allegedly -- started on ADHD drugs, with a resulting change in personality, which eventually led to the grandparents kicking the father out of the house.  An event that arose the father's ire and (allegedly) led to his decision to tell the grandparents that they'd never see their "golden granddaughter" again.

Plus, the child wants to see her grandparents, and wonders why she can't.

Geeze.  That makes me even more desirous of letting the grandparents visit.  I mean, seriously.  Let the grandparents and grandchild have a relationship, for goodness sake.

So as I'm reading the opinion, I'm on board for the trial court granting visitation.  And the Court of Appeal tells me early on that they're affirming, so I'm cool with that.

But then I get to the actual remedy section.  I was thinking that the grandparents would get like two four-hour visits every month or so.  But here's what they actually get:

"Jeff and Cindy [the grandparents] may have Riley [the grandchild] once a week during a weekday overnight visit and one overnight weekend visit per month. Jeff and Cindy may take Riley on a seven-day vacation each summer and have an overnight visit with her around Thanksgiving and Christmas."

Whoa!!  Overnight visits?!  And take someone else's child on a seven-day vacation every year?!


I'm not entirely sure why, but for me, that ups the ante here.  Substantially.  To reiterate:  These are not unfit parents.  At all.  The parents -- both of them -- simply have decided that they don't want the grandparents in their lives.  Now, I'm okay with saying that's not an absolute, and that, on the state of the evidence here, it'd be in the best interests of the kid -- and permissible -- to let the grandparents see and have reasonable visitation with her.

But taking a kid out of a fit home of her parents and letting someone else have them for overnight visits?  And taking the kid away for a full week merely because we think that that'll be "good for them"?

Wow.  I don't know.  Emotionally, that just seems different to me.  I imagine the state taking away one of my own children for a full week because they allegedly know better than I do what's good for them and say to myself:  "Hell no."  A full week?!  Wow.

Can I give a rational explanation why visitation for four hours on an afternoon seems different to me than overnight visits and even more visit from a full week vacation?  No.  Not really.  I totally get the argument that this is merely a quantitative, rather than qualitative, difference.  And concede that I can't readily define the line between how much it's "okay" to take a kid away from fit parents and when it suddenly becomes not okay.

But there's nonetheless still a huge part of me that says there's a line.  I may not be able to draw a definite line between a dude with a few straggly hairs and a guy with a full beard, either.  But there's nonetheless a difference.  One's got a few hairs, and the other has a beard.  Even though I can't draw a definite line their either.

The Court of Appeal here doesn't seem to have been asked to resolve when taking away a child from his fit parents is "too much"; instead, the parents' argument was a more categorical one, and focused on the claim that since they were fit, their kid couldn't have been taken away from them at all.  As I said before, with respect to that issue, I'm somewhat sympathetic to the Court of Appeal's holding.

But there's nonetheless a line here.  At least emotionally.  At least for me.  And maybe as a matter of (admittedly imprecise) law.

And I wonder if that line wasn't, in fact, crossed here.

So in an appropriate case, I wonder whether the Court of Appeal might consider this issue.  As well as think deeply about it.

'Cause I'm not down with the state taking away my kid for a week-long vacation for his own good.

Even if it's objectively "right".

Thursday, February 04, 2016

Smith v. Schiro (9th Cir. - Feb. 4, 2016)

An test that Robert Smith took when he was 15 years old (in 1964) indicated that he had an I.Q. of 62.  One that he took later that year indicated an I.Q. of 71.

Smith committed a murder in 1980.

Tests taken in 2005 and 2007 indicated in I.Q. of 89, 91, and 93.

What Mr. Smith's I.Q. was at the time of the murder is the difference between life and death.

Judge Reinhardt authors the majority opinion.  Judge Callahan dissents.  So you can guess where the Ninth Circuit comes out today.

You thought the bar exam was stressful.  Imagine a test that decides whether you live or die.

Wednesday, February 03, 2016

People v. Valenzuela (Cal. Ct. App. - Feb. 3, 2016)

Defendant carjacks someone, pushing the victim down while her six-year old child stood by crying.  Defendant then speeds off in the vehicle, almost running over a bystander in the process.

When the police start a chase, defendant then tries them by crossing into oncoming traffic to pass cars, skidding into a field, driving back onto a residential streets at up to 65 miles per hour, and running through several stop signs and through an intersection with crossing guards as children walking to school scrambled to get out of her way.  Defendant's ultimately caught when the car crashes head on into a telephone pole and defendant is tackled by police.

Oh, yeah.  Defendant has prior convictions for car theft, receiving stolen property, and -- yes -- reckless evasion.

She also has methamphetamine in her pocket when she's arrested.

Defendant receives a total sentence of less than seven years in prison.

I'd have given her a fair piece more.

I've never been a fan of the sharp distinction between attempt versus completed crimes, or crimes that involve reckless disregard and those in which it just-so-happens that there's injury.  Ms. Valenzuela here evaded police, drove 65 miles per hour on residential streets running through stop signs, and had kids and crossing guards scrambling out of her way to avoid being hit.  Had she hit one of 'em, she'd be looking at something like 25 to life.  As opposed to less than seven.

All based on the fortuity on whether or not a particular child happened to move six inches left or right at the time.

It seems to me that we should care a lot about deterrence.  Especially in these types of cases, in which the defendant is making a decision about whether the benefits of trying to evade the police (escape) are worth the downsides of doing so (enhanced penalties).  To deter, it shouldn't matter much whether a person (or other vehicle) happens to get hit.  Every single time, you create the risk.  So the penalty -- the thing you have to consider when you're deciding whether to flee -- should be sufficiently large to deter the creation of that risk.  Regardless of whether, in retrospect, someone actually ended up getting hit.

Ditto for culpability.  You're equally culpable for evading police regardless of whether the kid that you (almost) run over happens to see you sufficiently early and is fast enough to get out of the way.

The only thing that might justify the sharp distinction between punishment for those who create a risk and those whose risk happens to end up in injury is retribution.  And that's a pretty weak basis, in my view, upon which to foist criminal liability.  Especially given the far more compelling competing interest in deterrence.

So Ms. Valenzuela gets off easy, in my view.  Way easy.

Tuesday, February 02, 2016

Villavicencio-Rojas v. Lynch (9th Cir. - Feb. 2, 2016)

Judge Berzon concurs and says:  "I note that, as a practical matter, my understanding of the statute and the majority’s will not diverge very often. The occasions on which a defendant commits a controlled substance offense and then is arrested for another such offense before the judicial disposition on the first one will not be frequent. But they will occur occasionally."

Given the nature of drug abuse, I'm confident that the number of times this will transpire will not fall anywhere near the "rare" category.  But the word "occasionally" covers an awful lot of ground.  So I cannot disagree with what Judge Berzon says.

Monday, February 01, 2016

Unilab Corp. v. Angeles-IPA (Cal. Ct. App. - Feb. 1, 2016)

I agree with the plaintiff that it should be paid.  Doctors put specimens in those ubiquitous "Unilab" boxes and asked Unilab to give 'em results.  Unilab did so.  Unilab should be paid.  Whether that's a contract, or implied contract, or quantum meruit, or whatever, Unilab should be paid.

But I also agree with the Court of Appeal.  Unilab shouldn't be paid by the IPA -- the independent physician's association.  For the reasons expressed in Justice Epstein's opinion.

But I'd also reiterate that Unilab should be paid.  If Unilab sued the doctors themselves, in my view, I would likely find for Unilab.  The doctors erroneously placed the specimens in the Unilab box.  And Unilab had not reason to know this was by accident.  To the tune of six figures in laboratory results.

That's a pretty good lawsuit, in my opinion.

But you've got to sue the actual doctors who committed the error, not the IPA.

People v. Safety Nt'l Cas. Corp. (Cal. Supreme Ct. - Feb. 1, 2016)

I freely admit that I don't know as much about bail proceedings as perhaps I should.  But I nonetheless thought that every single word of Justice Chin's opinion was spot on.

Every.  Single.  Word.

So too, apparently, did the rest of the California Supreme Court.  The opinion was unanimous.

Defendant had to be at his pretrial hearing.  He knew about it.  He didn't show up.  The entity that bailed him out accordingly lost the bail.  (At least after they subsequently couldn't find him.)

Sounds right to me.