Monday, October 31, 2016

People v. Newman (Cal. Ct. App. - Aug. 18, 2016)

"On the evening of December 28, 2000, defendant called a Long Beach Pizza Hut restaurant and ordered a pizza. He became very angry, because he believed he had been placed on hold for 'too fucking long.'"

I hear you.  Hate it when that happens.  Maybe calm down a bit, but I understand the frustration.

"Five minutes after his order, he went to the restaurant and demanded his pizza. He yelled and cursed at the employees and stated he had been 'waiting [all] this time and [he was] hungry' and wanted his pizza immediately."

Okay.  Check that.  Definitely calm down.

"Although offered two free pizzas if he would calm down . . . ."

Wait a minute?!  I can get free pizzas that way?!  Two free pizzas?!  Apparently this is an awesome strategy.

". . . . defendant continued yelling before walking out, stating, 'You know[] what? I don’t need your fucking pizza.'"

No, dude!  Take the pizzas!  (And what's with the constant f-word?)

"As he walked out, Jose Alvarez Avalos, a uniformed delivery driver, was entering the restaurant. Defendant struck Alvarez in the jaw although Alvarez, who did not speak English, had not exchanged any words with him. Alvarez fell to the ground and briefly lost consciousness. Upon regaining consciousness, he saw defendant walking to a car and went to his own car to write down defendant’s license plate number. Defendant approached from behind, began to choke Alvarez, and demanded his money. He took about $50 from Alvarez’s pocket. Alvarez sustained a hairline fracture of the jaw and was in a great deal of pain. As a precautionary measure, an oral surgeon performed surgery to wire Alvarez’s jaw shut."

Oh, man.  You should have definitely taken the pizzas.  And/or calmed down.  Breaking the jaw of a random guy walking into the store was definitely a suboptimal alternative.

"The trial court found defendant had suffered five prior felony convictions under the Three Strikes law. . . . He was sentenced to prison for 25 years to life for his assault conviction, plus four 5-year prior serious felony enhancements."

Yeah.  Like I said.  Suboptimal decision making.  Maybe like those five other prior felony convictions.

Proposition 36 motion to recall the sentence denied.  Affirmed.

No pizzas in prison.  Should have taken the free ones.

P.S. - No free pizzas tonight either.  But candy galore.

Friday, October 28, 2016

People v. Learnard (Cal. Ct. App. - Oct. 28, 2016)

Defendant allegedly hits someone with his skateboard.  After he's arrested by police, once he's in his cell, he's very upset about his situation.  "He alternated between extreme anger and agitation to becoming emotional and slumping against the wall crying. He paced the cell, frequently punching his hand with his fist and slapping his hands against the walls and the glass door of the cell. He removed his shirt and threw it on the floor. After filling out some paperwork, he threw the pen against the wall so forcefully that the pen broke."

There's a videotape of his conduct in his cell.  The prosecution plays it at his trial.  Defendant strongly objects, saying that the prejudice resulting therefrom clearly outweighs its probative value.

I was initially inclined to agree.  But Justice Lui's opinion persuades me otherwise.  Yes, the video does tend to prejudice the defendant.  And it's technically not part of the crime at all, which was done and over by the time the police found him.

But Justice Lui persuasively argues -- to me, anyway -- that the video is relevant to refute defendant's story at trial that he attacked the victim because the victim was a drug-dealing child molester.  Whereas the prosecution's story -- and a pretty persuasive one at that -- was that the victim was a total stranger, and that defendant just went off on the guy for totally no reason.

The fact that the defendant was in a seriously agitated state seems relevant, since it provides a fair piece of support to the prosecution's position that the defendant had a "problem" at the time and in that state decided to go off on a total stranger.  Sounds to me like that was, in fact, what went down.

Plus I agree that, even if it was error, it was harmless.  Because, yes, the defendant was pretty clearly guilty of assault.

On another front, I'm happy that the Court of Appeal reversed the guy's 35-year-to-life sentence for the attack.  Which clearly deserves punishment, but not 35-to-life.  Even though the guy's clearly got problems, and needs help (as well as to be off the street, at least for a while), 35-to-life seems a fair piece too much for a skateboard attack where the victim refuses medical treatment and doesn't have any serious injuries.

So, in the end, it seems to me that this opinion strikes the right balance.

Which is a nice way to go into the weekend.

Thursday, October 27, 2016

People v. Aguilar (Cal. Ct. App. - Oct. 27, 2016)

This is a lengthy, published opinion that exclusively involves whether it really costs $475 -- the amount of the restitution order at issue -- to paint over a profane, 80 foot long, five-foot high piece of spray-painted graffiti on the wall of a childhood development center.

The Court of Appeal, along with the trial court, concluded that it was.  Reasonably, in my view.  (A snippet of the trial court's sentiment in this regard:  "There was extensive damage as shown, and the court will note that if you get anyone to paint anything nowadays, good luck getting anything under $500. I think it is perfectly reasonable, and there is a nexus. That will be the order.”)

It may also bear mention that I'm not sure exactly how much the Attorney General's office spent to defend the appeal, since (like graffiti removal) the relevant lawyers aren't paid on a piecemeal basis.  Nor do I know precisely how much defendant's court-appointed attorneys were paid for the appeal, or how it cost the non-piecework-paid justices to resolve this appeal in a published opinion.

But I bet it was a fair piece over $475.  Each.

Wednesday, October 26, 2016

Shepard v. Wise (9th Cir. - Oct. 26, 2016)

Judge Kozinski says that there's no qualified immunity because, if the inmate is believed, it's not okay for a prison guard to retaliate against a prisoner's claim of excessive force by that guard by putting the prisoner into solitary confinement for three months.  Judge Tallman says that there should be qualified immunity for doing so because running a prison is a tough place and it makes sense for a guard to put a prisoner into solitary confinement on the very same day the prisoner makes a complaint against him because that way the guard and prisoner won't have any additional interactions.

Fortunately (in my view), district court Judge Rayes, sitting by designation from Arizona, agrees with Judge Kozinski.

Tuesday, October 25, 2016

People v. Lopez (Cal. Ct. App. - Oct. 25, 2016)

Raul Lopez and Freddie Chacon were 16 when they kidnapped a CYA librarian as part of an effort to escape from the CYA facility.  During this process, they also assaulted her and stabbed another CYA instructor with a shank.  They were both sentenced to LWOP.

A series of legal challenges followed.  Mr. Lopez and Mr. Chacon served nearly 25 years in prison each, but ultimately had their sentences reduced and were released from prison.  The Attorney General filed an appeal, but the Court of Appeal affirms,

Wholly beyond the merits of the statutory dispute, I think a couple of things practically help to explain the Court of Appeal's ruling.  For one thing, the defendants were 16, and no one got killed.  For another, both of the defendants ultimately ended up spending nearly a quarter century -- a very long time -- in prison.

Finally -- and I think this matters a fair piece -- upon being released from prison, one defendant is promptly deported to Mexico to live with his family there and another one is put on probation for five years and told that if he makes even a tiny mistake he's going back to prison for life.

I think those facts give the Court of Appeal some comfort in the conclusion that what they've done here is in fact just.  Or, at a minimum, not exceptionally likely to result in a harm to public safety.

Monday, October 24, 2016

Barickman v. Mercury Cas. Co. (Cal. Ct. App. - Aug. 15, 2016)

Insured runs a red light while drunk and hits two pedestrians.  He's insured for the statutory minimum under California law (sadly), so the insurance company -- Mercury -- wisely offers the policy limit of $15,000 each to the pedestrians, who accept it.

Meanwhile, the Insured's criminal case, the Insured gets sentenced to three years in prison, and also is ordered to pay $165,000 in restitution.

In a normal world, that'd be the end of it.

But, of course, we live in no such world.

Mercury's willing to pay the policy limits, and the victims are willing to accept this, but they want to make clear that the $15,000 insurance payments will not reduce or offset the court-ordered $165,000 restitution award.  Of course, the insured wants something different, but, as you know, the insured is not the one who decides whether or not to settle.  Nonetheless, the case dickers along, with the victims forwarding along a proposed settlement agreement that includes the line "This does not include court-ordered restitution" and Mercury responding that such a line is unnecessary and superfluous, but still fully willing to forward on the full policy limits for each victim.

So the victims file suit, with both sides still pushing for their version of the agreement.  And then, at some point, the victims say:  "Screw it."  And enter into a stipulated judgment with the insured not for the $15,000 policy limits, but rather $3 million.  Alongside, of course, and assignment of bad faith claims against Mercury.  Which the victims then promptly sue.

The trial court gives the victims the full $3 million stipulated judgment, plus ten percent interest per year.  The Court of Appeal affirms.

You can view this case one of two ways.  Ways which are not necessarily inconsistent with each other.

On the one hand, you can be horrified that a trivial dispute over settlement language in a $15,000 case gets the insurance company on the hook for $3 million.  What an incredibly bad series of decisions by the insurance company.  If they'd have just signed the agreement, or just written the check, they'd be totally off the hook.  But, no, that wasn't their call.  So now they're paying millions upon millions of dollars.  Bad choices.  Really bad.

On the other hand, you've now got two people who seem to receive a manifest windfall -- at least as compared to similarly-situated victims -- as a result of a penny-ante dispute.  There was an incredibly tiny fight over whether a $15,000 payment will be an offset.  So now they get $3 million?!  That is a huge payment for a fairly insignificant mistake.  You understand how, as a matter of doctrine, such a result comes about.  But still.  At a minimum, it seems super unfair to the tons of other drunk driver victims who have to live with $15,000 to have two of 'em get a multi-million dollar windfall in nearly identical circumstances.

Yet there you have it.

So, okay, an insurance company screws up, and ends up paying for it.  And two people who would otherwise receive $15,000 get millions of dollars instead.

But, at some level, this still sounds something more akin to winning a lottery than any straightforward attempt at systemic justice, no?

Friday, October 21, 2016

People v. Cady (Cal. Ct. App. - Oct. 20, 2016)

As we head into the weekend, a cautionary tale from this opinion:

"On the evening of January 10, 2014, Cady and his friends Dustin Barr, Jeff Becker, Taylor Bednarski, Shon Gilliam and Trevor Rodgers drove in Cady's Cadillac Escalade for a night of drinking in local bars in San Diego. After leaving the second bar at around 11:00 p.m., the group got back into the Escalade, and Cady drove onto Interstate 805 toward the transition ramp to State Route 52, with the goal of returning back to Bednarski and Rodgers's house.

As Cady approached the transition to State Route 52 he was traveling at a high rate of speed, and several of his passengers told him to slow down. Cady replied with a statement such as, "I'll drive this fucking car however the fuck I want," and then accelerated further. One witness also remembered Cady laughing like somebody who "lost their mind" as he accelerated. Shortly after accelerating, Cady lost traction on his vehicle as he went around a curve, causing the Escalade to roll at least five times, travel up an embankment and then slide back onto the freeway. Another vehicle then impacted the Escalade, causing the Escalade to spin to its final position. During the accident four of the passengers — Barr, Bednarski, Gilliam and Rodgers — were ejected from the vehicle. Bednarski and Gilliam died immediately from blunt force trauma. Barr and Rodgers were seriously injured, but survived. Becker died at the scene inside the Escalade from blunt force trauma. An accident reconstruction expert calculated that Cady was driving between 87 and 97 miles per hour when he lost control of the vehicle.

Based on a blood draw from Cady after the accident, an expert concluded that depending on whether the alcohol that Cady had consumed that evening was already fully absorbed into his system, Cady's blood alcohol level during the accident was between 0.1 and 0.18. Another expert testified that based on an analysis of the cannabinoids in Cady's blood drawn at 2:18 a.m., Cady had used marijuana within hours of the blood draw, and the level of active cannabinoids would have been significantly higher during the accident than during the blood draw. The expert witness testified that the combination of active marijuana with alcohol produces an "additive effect," which is an increase in the impairing effect of both drugs, so that "the combination of those two [drugs] at the same time produces an effect greater than either substance on its own." . . . .

The jury found Cady not guilty of murder, but found him guilty of all of the other counts and made true findings on all of the factual allegations. The trial court sentenced Cady to 18 years in prison."

Let's be careful out there.

Thursday, October 20, 2016

People v. Reyes-Tornero (Cal. Ct. App. - Oct. 19, 2016)

From this opinion:

"For years leading up to December 4, 2010, Nazario Hernandez had hosted card games at his home about three times a week."

That's nice.  A friendly little neighborhood card game.  (Now, to me, three times a week seems a bit excessive.  But who am I to judge?)

"One of these card games took place outside Nazario’s trailer on December 4, 2010. In attendance at the outdoor card game were Jose Ramos, Efren Cisneros, Ignacio Martinez, and Nazario Hernandez. Other individuals were playing another card game inside the trailer.  Around 8:00 or 8:30 p.m., Efren first noticed a man about three or four feet from the card table. Nazario was walking towards his trailer when the man 'asked' for his money. Nazario thought the man was 'playing' and 'didn’t pay any attention.'"

You might be thinking:  "Yeah, I don't think he's 'playing'."  You'd be right.

"Then, the man came to where Efren was playing cards with Jose and Ignacio. The man had a gun and was covering his “head” with his sweatshirt. The man fired a warning shot at the ground, then threatened Jose and Ignacio with the gun by “put[ting] it behind them or on their head.” The man told them, in Spanish, that he wanted their money. There was about $250 or $300 from the card game on the table. Jose and Ignacio said they would give him the money, but refused to give him their wallets."

Hmmm.  That's an interesting strategy.  Why give the man the money but not your wallet?  I could see (maybe) if what he wanted was a wedding ring, or something else with sentimental value.  But money is money, no?

Now, personally, once the guy fires a warning shot, any reluctance to part with my wallet would be gone.  But I guess these folks had a theory.

"The man then came towards Efren and pointed the gun at him. Efren also told the man that he could have the money but not his wallet. The man shot Efren below his right eye, next to his nose. Efren “guess[ed] he got frustrated from what I was saying so then I turned around and that is when I was shot….” Efren then got up and tried to grab the man. During the short struggle, the man’s face became uncovered and Efren got a good look at him. The man then shot Efren three more times. Efren saw the man take the money that had been on the table and left."

Shot right below the right eye?!  Then three more times?!  That "take the money but not my wallet" strategy definitely did not work out very well.

"Efren then drove himself to the hospital."

Now that's pretty hard core.

Wednesday, October 19, 2016

People v. Holm (Cal. Ct. App. - Sept. 7, 2016)

I love opening paragraphs like this one:

"After defendant Jon Holm was convicted of second degree burglary, he filed a petition under Proposition 47 seeking to reduce his offense to misdemeanor shoplifting under Penal Code section 459.5. The trial court denied his petition on the ground the private golf and country club from which he stole a flat screen television and golf balls was not a 'commercial establishment' within the meaning of that section. We conclude otherwise and reverse and remand."

Thank you!  That way I don't feel like I have to read the rest of the opinion.  Notwithstanding the fact I invariably do.  At least for the casual reader, you've set out the rule in a straightforward manner.

As for the merits, yeah, Justice Banke's opinion seems spot on.  Sure, it's a private club.  But it's still a commercial establishment.  At least in this context.  Couldn't agree more.

Oh, and more more thing.  Mr. Holm stole "a television, valued at $662.23, and three boxes of golf balls, valued at $50 each, from the Santa Rosa Golf and Country Club."

Three boxes of golf balls cost $50?!  Each?!  Holy Moses.  I'm not joining the Santa Rosa Country Club anytime soon, that's for sure.  I surely can't afford it.  (Not that they'd have me anyways, I'm sure.)  Heck, I can barely afford the balls.

Plus, I can only imagine how much pain it would cause me every time I whacked a $20 ball into the lake.  Golf is supposed to reduce stress, not cause it.

POSTSCRIPT - Clearly I need to play golf a bit more.  I knew that golf balls came in sleeves, that a sleeve generally contains three golf balls, and that sleeves are generally rectangular cardboard boxes.  Hence that a "box" of golf balls that cost $50 would mean around $20 a ball.  But a careful reader tells me that a "box" of golf balls consists of 4 (cardboard box) sleeves.  Which means that each ball really only costs $4 ($50/12).  Now, since I'm such a duffer, I'd still probably put $20 or so worth of balls into the lake.  But glad to know that's several balls, not just one.

Tuesday, October 18, 2016

City of San Diego v. San Diegans for Open Government (Cal. Ct. App. - Oct. 17, 2016)

I'm not totally sure which way this one cuts.

On the one hand, sometimes, filing a petition for rehearing in order to "clear your name" sometimes makes it worse.  Occasionally much worse.  The Court of Appeal here discusses at length the losing party's petition for rehearing.  And says the following:

"We have read and considered San Diegans for Open Government's (SDOG) petition for rehearing. We deny the petition.

In its petition, SDOG claims that a rehearing is warranted because our opinion in the instant matter was grounded on two "irrelevant" statutes, Revenue and Taxation Code sections 19719 and 23300 (statutory references are to this code unless otherwise specified). We disagree. Our holding in City of San Diego v. San Diegans for Open Government (Sept. 22, 2016) 2016 Cal.App.LEXIS 783 was not contingent on a finding that SDOG and/or its attorney, the Briggs Law Corporation (BLC), committed a criminal act. Instead, we determined that a suspended corporation may not recover attorney fees under Code of Civil Procedure section 1021.5 when the corporation filed an answer in a validation action while both it and its attorney knew it was suspended.

In its petition for rehearing, SDOG, for the first time, directly addresses the City of San Diego's (City) argument that BLC engaged in criminal activity in violation of section 19719. SDOG acknowledges that the City raised this issue in the superior court, but "SDOG stayed on point and did not respond to the inflammatory allegations of criminal misconduct." In other words, SDOG did not feel compelled to provide any defense for its actions or those of its attorney despite being accused of criminal activity.

Further, the allegations of criminal activity did not end with the City's arguments in the superior court. In its notice of ruling and statement of reasons, the superior court explained why it was "greatly concerned" by BLC's actions in representing SDOG in the underlying litigation, specifically referring to BLC's "litigation misconduct" as "at best, an ethical lapse, and, at worst, criminal behavior." And in its opening brief, the City again cited to section 19719 and argued BLC "participated in the litigation knowing they faced the risk of potential and criminal liability[.]" Nevertheless, SDOG did not argue in its respondent's brief that it did not commit any crime. At most, SDOG offered a passing argument that it was not suspended for a failure to pay taxes. It did not discuss section 19719 or otherwise contend that BLC did not violate that statute.

We observe that not only did SDOG and BLC previously fail to argue that their actions were not criminal, they offered no explanation or justification for their actions. They did not do so in the superior court. They did not do so in this court. Now, as part of the petition for rehearing, SDOG insists that it is entitled to yet another opportunity "to establish facts to explain its actions." Not so. SDOG was given multiple opportunities to explain its actions. It made the strategic decision not to do so. Merely because SDOG's strategy did not ultimately prove successful does not compel this court to provide SDOG with another bite of the proverbial apple.

In short, it is clear that when SDOG filed an answer in the validation action, both SDOG and its attorney knew SDOG was suspended. It is undisputed that SDOG was not revived until after the time lapsed by which an interested party had to file an answer in the validation action. As such, we determined that SDOG could not recover attorney fees under Code of Civil Procedure section 1201.5. Nothing raised in the petition for rehearing changes this conclusion."

That's a long discourse on criminality.  It highlights the allegations that the petitioning party wants removed.  That's not really what you're looking for.  At all.

At the same time, however, here's how the Court of Appeal ends the thing:

"That said, this court reached no conclusion that SDOG or BLC committed a crime. We merely cited to what the superior court stated in its notice of ruling and statement of reasons that BLC's conduct could be criminal (a statement SDOG did not challenge until now). As SDOG insists in its petition for rehearing that neither it nor BLC have engaged in any criminal activity by appearing in the underlying litigation and such a finding is immaterial to our conclusion, in an abundance of caution, we will slightly modify our opinion.

The opinion filed on September 22, 2016 is modified as follows: . . . .

On page 11, second paragraph, the second sentence is modified to read: Additionally, BLC's explicit approval of SDOG's appearance and representation of SDOG was, as described the superior court, unethical and perhaps criminal.

On page 12, the first full paragraph, the third sentence is modified to read: In light of this clearly unethical and possibly criminal conduct, we expect some explanation of BLC's actions.

On page 13, first paragraph, the first sentence is modified to read: Further exacerbating BLC's illicit conduct here, BLC does not accept responsibility for its actions.

On page 15, the first full paragraph, the fifth sentence is modified to read: To require taxpayers to compensate a party or a law firm for unethical and unprofessional or even illegal conduct, under the guise that the litigant is protecting the public interest, would turn the private attorney general statute on its head."

Well, geeze.  That's exactly what the petitioning party was looking for.  So all is far from lost.

It's unclear to me (and I should probably know this) whether the long modification discourse at the outset is also published.  If so, then the petitioning party isn't getting totally everything it wants.  (It would be slightly weird to publish it and not simultaneously indicate the deletions in the published opinion, which leads me to believe the discourse might not be published -- or at least might look a bit strange and/or incomplete.)  But if the part at the outset isn't published, then, yeah, the party that filed the petition for rehearing got a little verbal rebuke that it would prefer to do without.  But then it got exactly what it wanted.  So it's probably willing to take its ball at this point and go home.

Monday, October 17, 2016

U.S. v. Dowai (9th Cir. - Oct. 17, 2016)

Here's a question for the true legal geeks out there:

Is the district court of the Northern Marianas Islands . . .

(A) An Article I Treaty court;
(B) An Article III court; or
(C) An Article IV Territorial court?

The correct answer, according to the Ninth Circuit, is (C).

Which the Ninth Circuit also holds is perfectly fine.

Thursday, October 13, 2016

Wang v. Nebbelink (Cal. Ct. App. - Oct. 13, 2016)


I understand that Section 846 of the Civil Code generally shields landowners who allow recreational activities on their land from liability to people who come on that land for such recreational conduct.  I understand the text of the statute.  I understand its purpose.  We're excited about landowners opening up their land to outsiders, and we don't want those outsiders who come on that land for recreation to be sued.  We strike a balance.  The people on the land get to have their fun on that land, but don't get to sue if they're injured.

But here, it's not the person on the land who sues (or is injured).  Rather, a landowner allowed some horses on his land (for a recreational purpose), the landowner (allegedly) negligently allowed a horse to escape, and that horse left the property and seriously injured someone.

The trial court granted summary judgment to the defendant on the ground that Section 846 absolved the landowner of any liability to the injured party.  The Court of Appeal affirms.  The fact that the injured party had nothing whatsoever to do with the recreational activity -- moreover, that he never even stepped a foot on (or even came near) the property -- is irrelevant, Justice Hull holds.  There's still immunity for the landowner's negligence.


I understand why the Court of Appeal reaches this holding.  I understand the textual analysis (the words of the statute).  I get the policy basis (to encourage landowners to open up their property).

But I still tend to think that the Court of Appeal gets it wrong.

It's one thing to say that someone who comes on your property for recreational purposes can't sue the landowner.  It's totally another to say that someone entirely separate from this conduct -- i.e., as here, a total bystander, potentially miles away -- can't sue either.  The former seems an appropriate (or at least plausible) balance, and I'm confident is what the Legislature intended when it passed Section 846.  By contrast, I don't believe that the Legislature intended to, or did, tell a stranger to any of the recreational activities that if he gets injured by someone else's negligence, tough, totally no lawsuit.

That just doesn't seem especially plausible to me.

The next of the statute seems instead to give some credence to the view that only those people who actually came on the property for the recreational purpose -- who got the benefit of that land -- are the ones who consequently can't sue.  Section 846 says:

"An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose, except as provided in this section."

Those underlined clauses expressly relate to the people who actually enter the land and who use it for a recreational purpose.  They don't mention liability to bystanders.  That's something different.

The last six words then go on to say that there are certain exceptions.  Situations in which the owner of the land may be liable.  Those obviously don't help the landowner.  I understand that at least one portion of that later language -- the exceptions -- may arguably try to cover bystanders.  (Though even then there's an express reference to the people actually on the land for the recreational purpose:  "[A landowner] who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for that purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of the person to whom permission has been granted except as provided in this section."  The fact that this clause is part of the "exception", and also merely states that the opening of the land does not itself create liability, tends to suggest to me that it both doesn't and is not intended to immunize negligence towards bystanders.)  In the end, I simply am not persuaded that the language compels -- or potentially even allows -- the result reached by the Court of Appeal here.

Moreover, one of the exceptions would seem downright silly were the statute read as the Court of Appeal reads it here.  Justice Hull's opinion doesn't discuss it, but the fourth paragraph of Section 846 provides that "[t]his section does not limit the liability which otherwise exists . . . (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner."  Now, I totally understand why this section distinguishes express versus implied invitees.  Section 846 wants to immunize landowners for injuries to patrons who are merely "permitted" to use the land for recreational purposes, while simultaneously allowing invitees who are expressly invited to that land to sue.  Again, the policy rationale is a balance.  We want landowners to open up their land, so if there's a person who (permissibly) happens on the land for recreation, and benefits therefrom, we don't allow those beneficiaries to sue.  But when someone's expressly invited, well, that's different; they can sue.

That makes sense.  Except as applied to bystanders.

Under the Court of Appeal's holding, if I open up my land to horses, and two horses escape due to my negligence and kill two bystanders ten miles away, I'm not liable for the horse that merely "came" on the property but I am liable for the horse that was "invited" to the property.  I could see why such a distinction would matter to the permissive/express invitee were s/he injured.  But it definitely doesn't matter to the bystander whether the horse that mauled him or her was invited or merely permitted on the land.  Why the Legislature would possibly want one bystander compensated but the other to suffer her injuries in silence is beyond me.  I just don't think that was the Legislature's intent, or even its statutory language.

As I was reading the opinion, I kept thinking to myself:  "Wait.  Is the Court of Appeal really saying that if I open up my land to target shooting, and I negligently set up targets next to an interstate, and people come on my land and start shooting, I'm not liable at all to all the motorists who get shot on the highway?!"  But, yeah, that's exactly what the Court of Appeal is saying.

And, as it turns out, this isn't even an absurd hypothetical!  Apparently there are several out-of-state cases that involve almost that identical fact pattern:  a landowner gets sued for allowing shooting on his land and a bystander totally outside the property and not involved in recreation gets shot. All of those other states say that, yep, the landowner can be liable in such a setting, even in states that have their own analogue to Section 846.

But not here in California.  Not after today.  If you get shot while minding your own business and not engaged in recreation -- indeed, even if you get shot while in your own home -- as long as the shooter is engaged in recreation on someone else's land, you can't sue the negligent landowner who opened up that land to shooting directed towards your home.

That just seems crazy to me.  And not what Section 846 intends.

Again, I understand the policy argument.  We want people to open up their land.

But not at the expense of injury to bystanders.  I don't read the statute to say otherwise.  And I very much don't think that's what the Legislature intended, either.

It's one thing to say that the person engaged in recreation -- the person that stepped on your land and got benefits from it -- can't sue.  (Unless you "actually" invited him there.)  It's very much another to say that even a bystander injured by the landowner's negligence can't sue.

I don't think that's either what Section 846 or justice requires.

People v. Boswell (Cal. Ct. App. - Oct. 13, 2016)

See if you can figure out in advance how this is going to end:

"Eighty-seven-year-old Griffin lived alone in a home in San Diego. Her neighbor, Ana Murillo, occasionally took Griffin to casinos because Griffin liked to gamble. Griffin managed her own money and always kept money hidden around the house, including any winnings from her gambling. Boswell, a drug user, lived with Murillo. Boswell did not work and Murillo gave him money to buy drugs."

If you guessed "It will end badly," you are correct.  Boswell kills the 87-year old woman and is sentenced to LWOP for murder.

The Court of Appeal affirms.

Wednesday, October 12, 2016

GoTek Energy, Inc. v. SoCal IP Law Group, LLP (Cal. Ct. App. - Oct. 12, 2016)

It's human nature to procrastinate.  But I always tell my students that this can be a fatal flaw once you're an attorney.  Even though we constantly wait until the last minute to file complaints, answers, motions, etc., my consistent advice is to not wait until the last minute unless there's a good reason to do so.  Otherwise you may well find yourself in trouble and/or committing malpractice.

Like here.

The facts are simple.  Client retains Law Firm -- SoCal IP Law Group (see cartoon characters here) -- to file patent applications.  Law Firm nonetheless fails to file patent applications in Japan and Brazil, and Law Firm allegedly "admitted . . . that it was negligent” in failing to do so.

So, not surprisingly, Client decides to sue Law Firm for malpractice.

Client hires a new attorney to prosecute this claim, and does so in September of 2012.  On November 5, 2012, Client (through the new attorney) sends Law Firm a fax saying that it's making a malpractice claim against it and telling it to advise its insurer accordingly.  Two days later, on November 7, Law Firm sends an e-mail to Client saying that, in light of the malpractice claim, it must withdraw as Client's counsel, and says:  "Consequently, the firm's attorney-client relationship with [client] is terminated forthwith, and we no longer represent [it] with regard to any matters.”

Then, the next day, November 8, Client tells Law Firm to deliver all its files to its new patent firm.  A week later, on November 15, Law Firm sends an e-mail saying:  "“Pursuant to your request, this will confirm that we have terminated the attorney client relationship with you. . . . [W]e are no longer representing you with regard to your patent matters. As requested, we are transferring your files to Lucas Wenthe of Armstrong Teasdale, LLP.”

Client does, in fact, eventually file suit against Law Firm.  On November 14, 2013.

There's a one-year statute of limitations.  Why November 14, rather than November 6 (or, for that matter, November 4)?!  Sure, there's an argument that Law Firm didn't withdraw -- and hence start the limitations clock -- until its November 15 e-mail.  But there's a better argument that the clock started on November 7, when the Law Firm expressly told Client that "Consequently, the firm's attorney-client relationship with [client] is terminated forthwith, and we no longer represent [it] with regard to any matters.”  Much better, in fact.

But even if that was a worse argument, why wait the extra week?  You've had a whole year to file the suit you knew you wanted to file.  Why not file earlier?  Why wait until what you think is the very last day?!

The short answer is:  We don't know.  As Justice Yegan puts it:  "The record does not show why firm two waited until what it believed was the 'eleventh hour' to file the malpractice action."

Regardless, in the end, the reason matters not.  "We agree with the trial court that it waited too long."  The statute of limitation bars the lawsuit.

The only good news, I imagine, is that Client may potentially now have a new malpractice suit.  This time against its second law firm.  The one that waited until the very last day.  (Or, as it turned out, a day that was after the very last day.)

So that's something, I guess.

If you really like suing lawyers.  (As well as paying the $140,000 fee award that you had to pay to your former lawyers as a result of losing the first malpractice suit.)

Jorge v. Culinary Institute of America (Cal. Ct. App. - Sept. 16, 2016)

There have been absurdly slim pickings on the published opinion front recently.  Absurdly.  In the month of October -- and it's now the 12th -- the Ninth Circuit has published a grand total of two substantive opinions.  In 12 days.  Wow.  Similarly, the last time the California Court of Appeal published a new opinion was five days ago.

So, bluntly put, there's not much currently to talk about.

But at least we can still learn some lessons.

Here's one:

Sometimes, as a plaintiff, you're better off losing on summary judgment.

Like here.

Plaintiff hit by a car driven by Almir Da Fonseca as the latter was driving home from his work at the Culinary Institute.  Plaintiff sues not only the driver, but also the Culinary Institute.

It was Da Fonseca's personal car.  He was driving home.  Normally, there's no way that you can sue the employer, pursuant to the traditional coming-and-going rule.  But Mr. Da Fonseca had some work knives and some dirty uniforms in his car at the time, and occasionally (but not on the relevant day) did various consulting jobs outside of the office, so plaintiff thought this case might fall into one of the exceptions to the usual coming-and-going rule.  Hence the suit.

The Culinary Institute moves for summary judgment.  Plaintiff barely survives the motion -- with the trial court noting that plaintiff's argument against the application of the usual rule (based largely on the knives, uniforms, etc.) seemed "stretched and tortured" -- but survives it he does.  Then, at trial, the evidence is largely the same as on the summary judgment motion, and the defendant promptly moves for a directed verdict, but that too is denied.

Then the jury awards plaintiff nearly $1 million against the Culinary Institute, and the inevitable appeal follows.

The Court of Appeal reverses the judgment, as well as awards costs to the Culinary Institute.

So, for plaintiff (and his counsel), there's the time and expense of preparing for trial, actually doing the thing, and then the additional burden of defending the appeal.  All for naught.

Sometimes a win is, in the end, actually a loss.  Even if you don't realize it at the time.

Like prevailing on the summary judgment motion here.

Monday, October 10, 2016

In Re C.H. (Cal. Ct. App. - Aug. 30, 2016)

No opinions on Columbus Day.  We're too busy discovering new (legal) lands.

Maybe this opinion will give rise to one of those new lands.  Or at least resolve the conflicting claims about them.

Justice Siggins says:

"For the foregoing reasons, we agree with the holding of our colleagues in Division One in In re J.C. (2016) 246 Cal.App.4th 1462, and respectfully disagree with the courts who have held that redesignation of a felony as a misdemeanor under section 1170.18 requires expungement of an offender’s DNA and profile from the state database. (See Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209.) Redesignation of a felony to a misdemeanor under section 1170.18 does not require expungement."

Given these multiple conflicting authorities, the California Supreme Court should grant review and sort it all out.  Whether the state gets to keep your DNA shouldn't depend on the particular appellate panel you happen to draw.

Friday, October 07, 2016

U.S. v. Kaplan (9th Cir. - Oct. 7, 2016)

You're making hash oil, blow up an apartment complex, and kill one woman and injure five others, and you're only sentenced to three years in prison?  And you then appeal claiming that the sentence is way too harsh?

No dice.

I understand it's an upward departure.  But do I have to reiterate the point about you killing somone?

Thursday, October 06, 2016

Nicodemus v. St. Francis Memorial Hospital (Cal. Ct. App. - Oct. 6, 2016)

Section 1158 of the Evidence Code provides (or at least provided during the relevant time period) that:

"'Whenever, prior to the filing of any action or the appearance of a defendant in an action, an attorney at law . . . presents a written authorization therefor signed by an adult patient [or by a patient’s guardian, conservator, parent, or personal representative], . . . a licensed hospital . . . shall make all of the patient’s records . . . available for inspection and copying by the attorney at law . . . promptly upon presentation of the written authorization.' The statute authorizes the requesting attorney to employ a professional photocopier to obtain the records on the attorney’s behalf, and the provider must produce the records within five days. All 'reasonable costs' incurred by a medical provider in locating, copying, or making the records available may be charged to the requesting party, subject to limits set forth in the statute, which include $0.10 per page for reproducing documents measuring up to 8.5 by 14 inches, $0.20 per page for producing documents from microfilm, and clerical costs not to exceed $16 per hour per person for locating and making records available."

Makes sense.  No fair letting a hospital make a fat profit from giving patients and their attorneys the copies of medical records they desperately need.

And yet, in the present case, when plaintiff and his attorney requested medical records, "HealthPort’s invoice to plaintiff’s counsel sought payment of $86.52, and provided directions for payment. The amount included a $30 “basic fee,” a $15 “retrieval fee,” $25.25 for copying 101 pages at $0.25 per page, $10.30 for shipping, and $5.97 for sales tax. The invoice included a statement directing requestors to the information sheet for more details, and advising, “Payment implies that you agreed to employ HealthPort as your professional photocopy representative for purposes of this request and that you accepted the charge denoted below on this invoice.”

Nor was this a simple mistake.  "HealthPort has followed the same process at all of its California locations since May 1, 2009. Between May 1, 2009 and July 31, 2013, it processed 152,546 attorney requests for California medical providers, using the same invoice form, and charging the same per-page copying fee ($0.25)."

Plaintiff then sues in a putative class action.  The trial court, however, denies certification.

The Court of Appeal reverses.

Thankfully.  This sounds like an outstanding class action to me.  (Let's just hope that the class gets actual relief, instead of the attorney simply getting a hefty fee.)

Wednesday, October 05, 2016

People v. Nachbar (Cal. Ct. App. - Oct. 5, 2016)

"In April 2014, when defendant was 22 years old, he was placed on summary probation for having unlawful sexual intercourse with a minor, a 17-year-old girl."

Well, that's not good.  He's lucky he only got probation.

"While on probation for that offense, defendant met the victim in this case, a 15-year-old girl."

Oh no.  I can see where this is going.

Dude.  You're on probation.  Are you seriously going to make the same mistake twice?  This time with someone even younger?

"They met through a mutual friend, became friends on Facebook, and exchanged text messages. Several of defendant's text messages were sexually explicit and indicated he wanted to have sex with the victim. Some of the victim's responses were "OMG," "LOL," and that defendant was too old for her."

Damn social media.  Remind me to check my 15-year old daughter's iPad when I get home. Repeatedly.

"On September 14, 2014, the victim told her father she would be staying at her mother's house that night. Her mother was out of town. The victim and defendant arranged to meet at the mother's house, but she told him he could not stay too long because it was a school night. Defendant arrived around 8:00 p.m. and they tried to watch a movie in the victim's bedroom on her cell phone."

Ugh.  I can figure out where this is going.

"When they were unable to do so, the victim asked defendant to leave. Defendant said he wanted to cuddle, but the victim asked him to come back another time."

Oh, wait.  Maybe it's even worse than I thought.

"Instead of leaving, defendant grabbed the victim's breasts; she asked him to stop. Defendant moved his hands toward the victim's pants; she attempted to push his hands away. Defendant removed the victim's shirt and fondled her breasts. He reached underneath the victim's pants and underwear and digitally penetrated her vagina several times; she continued to tell defendant to stop. Defendant removed the victim's pants and underwear, got on top of her, and penetrated her vagina with his penis. The victim asked defendant to stop and was eventually able to push him off of her. She asked defendant to leave, and he exited her bedroom. The victim believed defendant had left the house. The victim put on her clothes and informed a friend by text message that defendant had just raped her. The friend notified the victim's father, who notified law enforcement."

Oh my.  Definitely worse.  Much, much worse.

Raping a 15-year old.  While on probation for having sex with a 17-year old.  You're going to get serious time for that.  The only question is whether it's going to be 10 years, or 20, or even 30.  As I'm reading the opinion, I'm definitely interested in just how slammed this guy is going to be.  I know it's going to be huge, but the only question is how huge.

"Deputies woke, arrested, and admonished defendant. He initially denied having any sexual contact with the victim, stating he knew it would be wrong because she was only 15 years old. However, during transport, defendant admitted he digitally penetrated the victim's vagina and had sexual intercourse with her. He denied the victim ever told him "no." Defendant said he was " 'coming down' " from having smoked methamphetamine before meeting with the victim."

That's not going to help your sentence.  At all.

"Pursuant to a plea agreement, defendant pleaded guilty to the unlawful sexual intercourse count and the remaining counts were dismissed. . . . The trial court sentenced defendant to 381 days in custody (which was set off by custody credits) and placed him on formal probation for three years."

WHAT?!  Seriously?!

I mean, I understand there was a plea, and that date rape cases aren't perfectly easy to prove.  But, again, WHAT?!  The guy's on probation for sex with a 17-year old and rapes a 15-year old (or, at a minimum, has sex with her), and gets just a year in prison.

That's shocking.  Really, really shocking.  Both at the plea and at the sentence.

From a case down here in San Diego, no less.

U.S. v. Lo (9th Cir. - Oct. 5, 2016)

"According to the indictment, from March 2013 to June 2013, Lo “knowingly and with the intent to defraud” executed a scheme to steal money from his girlfriend, A.W. Lo persuaded A.W. to let him prepare her tax returns, and then convinced A.W. to pay her estimated taxes to the IRS by writing checks totaling more than $125,000 to a Schwab account in the name of Lo’s wife. In connection with this scheme, Lo forged confirmation statements from Schwab which confirmed that her checks would be sent to the IRS on A.W.’s behalf."

Wait.  So Lo stole money from his girlfriend to give to his wife?

That's not cool at all.

That -- plus the $2,000,000 Mr. Lo stole from his employer -- gets him a little shy of six years in prison.

And given his plea agreement and waiver, his appeal is dismissed.

Tuesday, October 04, 2016

In Re Julien H. (Cal. Ct. App. - Oct. 4, 2016)

"In February 2015, DCFS received an anonymous referral indicating that the mother regularly left Julien for several days a week with his grandmother who smoked cigarettes in the child’s presence, left prescription medicine accessible to him and allowed him to eat candy."

Wait.  That's all it takes to get a DCFS referral?!  Cigarettes and prescription pills in the house, and (gasp!) eating candy?  Gonna be a lot of calls on Halloween, I'd imagine.

Ultimately, when the DCFS worker actually tours the home, it turns out that there are all sorts of other problems, which ultimately leads to this appeal.

But I read a lot of these cases, and I can say without exaggeration that the allegations at issue are usually way worse than the fact that the grandmother smokes and the kid eats some candy.


In Re Marriage of Cohen (Cal. Ct. App. - Oct. 3, 2016)

As I'm reading this opinion, I kept saying to myself:  "Wow.  This is a really well-written opinion.  I mean, really well written."  The sentences are crisp.  The analysis is tight.  Just incredibly well done.

By that, I don't necessarily mean that the substantive content is perfect.  There may well be parts to which a reader might disagree.  It's not a totally open-and-shut case.

Nonetheless, as far as style goes, the opinion is nothing less than amazing.

I can tell good writing from bad writing.  But it's exceptionally rare that I come across an opinion in which the writing literally makes me sit up in my chair.  This is one of those cases.

So as I was reading the opinion, I couldn't wait to get until the end.  Who's writing the thing?  Who's this incredibly good?  I exaggerate not in the slightest when I say that I was itching to get to the end just to find out.  (And, no, I did not skip ahead:  I wanted the tension to build.)

Then I get to the end.  Justice Bedsworth.

I should have known.

Anyway, extremely well done.  Good job (eventually) publishing it.  Not only because the substantive law therein clearly meets the standard for publication.  But also as an exemplar of outstanding writing.

Monday, October 03, 2016

Doe v. Nikolay (Cal. Ct. App. - Sept. 29, 2016)

Plaintiff says that Nikolay had some naked/sex pictures of plaintiff and distributed them to others, as well as threatened to send them to plaintiff's employer.  So plaintiff sues, since in California there's an express cause of action for that.

Not surprisingly, plaintiff sues as a Doe, since plaintiff wants to remain confidential and not let the world know there are naked/sex pictures out there.  In California, there's an express statute that -- for good reason -- allows such claims to be filed as a Doe.  But the trial court finds out that the clerk has accidentally posted Doe's real name on a publicly-available document -- a mistake not of Doe, but of the court -- so says that Doe can't use a pseudonym anymore, since the cat's out of the bag.

The Court of Appeal reverses.  Rightly so, in my view.  It's a short opinion.  That's all it takes.  The fact that a clerk made a (reversible) mistake doesn't justify forcing Doe to make everything public at this point.  Instead, you should taken the mistakenly-published document off the court's web site and continue to let plaintiff use the word Doe.


One last thing, that might be a tiny bit surprising.

Defendant's Nikolay's first name is Poulet.  She's a woman.  And plaintiff is a John Doe.  So it's the guy in this case that doesn't want his naked/sex pictures circulated by a woman.

Not what you might have first thought, eh?

Not that that's at all relevant to the merits of the case, of course.  But I bet those particular gender roles are the minority of these types of cases.