Wednesday, November 30, 2016

Driscoll v. Granite Rock Co. (Cal. Ct. App. - Nov. 30, 2016)

One thing I like about reading judicial opinions is that you often learn something new.  Though, as a matter of fact, I already knew this part:

"The concrete that Granitrock produces is a perishable product that cannot be stored. It is mixture of rock, sand and cement. When water is added to the mixture, it creates a chemical reaction that causes the mixture to harden. For this reason, when there is concrete in the drum of a mixer truck, the drum must rotate at all times to prevent hardening. In addition, freshly batched concrete must be poured within 60-90 minutes to ensure its structural integrity. One of the duties of the concrete mixer drivers is to monitor the rotation of the truck drum."

I knew that because one of my relatives (in North Carolina) used to drive a concrete truck.  With an emphasis on "used to".  One night, after work, he had far too much to drink, drove the truck -- which was still full of concrete for the next day's pour -- home, parked it, and slept it off.  But neglected to keep the drum spinning.  So when he woke up the next morning, he had a drum with several tons of set concrete.  In the drum.

As you can imagine, he was promptly fired.

So, yes, keep that drum spinning.

P.S. - Is the company "Graniterock" or "Granite Rock"?  The Court of Appeal's opinion repeatedly says that it's "Graniterock" (e.g., "Graniterock is a concrete company that manufactures, delivers and pours concrete.")  But caption of the opinion says that the defendant is "Granite Rock Co."  The web site of the company, for what it's worth, appears to say "Graniterock".  Maybe one's a d/b/a.  (Making it more confusing, in the quote from the opinion I pasted above, the Court of Appeal also calls the company "Granitrock" -- without the e.  I'm pretty sure that's just a typo, though.)

Tuesday, November 29, 2016

U.S. v. Doe (9th Cir. - Nov. 29, 2016)

When I first read the caption of this case, I was intrigued.  It's a criminal case, but the name of the defendant is deliberately obscured as a "Doe"?  Why?  It's a criminal case.  It's public.  Why not use the defendant's real name?

Then I read the opinion.  Which discussed something I hadn't seen -- or thought about -- before.

The opinion doesn't use the defendant's name because no one knows it.

The guy's charged with identity theft.  He's been using someone else's name, social security number, etc. for nearly 30 years.  And the guy refuses -- to this day -- to tell the authorities who he really is.

And the government can't figure it out.

That's certainly interesting.

I think it may also explain, in part, why the district court departed upward.  The guidelines range here calls for a sentence of only one or two years.  But the district court gives him six and a half.

The Ninth Circuit affirms the departure, since the identity theft here did really cause the victim a ton of harm over the past several decades.  And I think that's right.

But I'd have also said that the upward departure also seems fine to me because we don't even know who this guy really is.

That means two things.  First, it means we totally can't be sure what he's done in the past.  He's got a "criminal history" category of II.  But let me add this:  That's just what we know about.  Who knows what he's done in the past?  Certainly not us, because we can't even figure out his name.  Isn't it just a tiny bit likely that the guy's got some "problems" in his past?  'Cause last I checked, people who are living a perfect, law-abiding life rarely ditch their identity and refuse to admit -- even when caught -- who they really are.

Second, it also means that this guy's probably unlikely to be law-abiding in the future.  He's refusing to tell anyone who he is.  Think he's going to just admit everything after he's out of prison and then live a normal life?  Doubtful.  He may well just find -- i.e., steal -- a new identity and give that one a shot.  That's another reason to keep him in the joint for a bit longer, IMHO.  Incapacitation.  For at least a while.

Parenthetically, I tried to find a picture of the defendant.  I thought it'd be worth posting.  If only in the unlikely event someone would recognize him.  But all I could find was a picture of this gavel.

Not exactly helpful.

Tidwell Enterprises v. Financial Pacific Ins. Co. (Cal. Ct. App. - Nov. 29, 2016)

Don't you wish every appellate opinion had a concise and informative introductory paragraph as this one:

"A fire destroys a house. The homeowner's insurer agrees to pay for the damages resulting from the fire, then sues the contractor who installed the fireplace several years earlier, claiming negligence. The contractor tenders defense of the action to its liability insurer, asserting that even though the fire occurred after the relevant policy periods ended, there is a possibility of coverage because the fire may have been the result of ongoing damage to the wood in the chimney chase during one or more policy periods due to the exposure of that wood to excessive heat from the chimney every time a fire was burned in the fireplace. Under the standard language in a commercial general liability policy, does the liability insurer have a duty to defend the contractor? For reasons we will explain, we say “yes.” Accordingly, we will reverse the judgment here that concluded otherwise."

Plus, I learned something.  I had never heard of a "chimney chase" before.  "The chimney chase is the structure through which the chimney pipe runs.

Now all I have to do is to figure out what a chimney pipe is.

Tuesday, November 22, 2016

Goles v. Sawhney (Cal. Ct. App. - Nov. 22, 2016)

It's a shareholder buyout case where the trial court is required to decide the value of the minority shares.

I definitely agree with the Court of Appeal that the trial court got it wrong.  There were three different appraisers, and each of these experts valued the shares at a totally different amount.  One expert said $69,000, another said $150,000, and the third said $200,000.

The trial court "agreed" with the experts (?!) and decided to value the shares at the exact average of these three different figures; i.e., $139,666.67.

This was obvious error.  You have to actually decide the case.  Which means figuring out which of the witnesses is correct.  You can't just "average" the competing results.

What the trial court did just seems crazy.

So I'm totally with the Court of Appeal on that.

But there's one part of the opinion I'm less sure about.

The Court of Appeals notes that "The Marcus and Forsyth appraisals discounted the fair value of appellants' shareholder interest by 20 percent and 15 percent for lack of control."  That's a pretty standard appraisal technique.  Minority shares can't control the corporation, so they're worth less than shares that include control.  Pretty basic corporate law.

But the Court of Appeal then says, citing a prior opinion from the Court of Appeal:  "Section 2000, however, does not permit a lack-of-control discount when determining the fair value of a minority shareholder interest. The rule justifying the devaluation of minority shares in closely held corporations for their lack of control has little validity when the shares are to be purchased by someone who is already in control of the corporation. In such a situation, it can hardly be said that the shares are worth less to the purchaser because they are noncontrolling."

Okay.  I get that the prior case probably says that.  But I don't understand why that's right.

To me, the minority shares are worth a discount to the minority owner because they don't include control.  And the minority shares are worth a discount to the majority owner as well because they don't give him any control that he doesn't already have.  There's no control bonus to anyone with minority shares:  not the current owner, not the future owner, not anyone.  Which is why they do -- and should -- trade at a discount.

It may well be that a prior case said what the Court of Appeal here says. But I don't understand why that's right.  Or why the Court of Appeal here should follow that opinion.  Which seems wrong to me.

No willing buyer will pay, nor will any reasonable seller expect to sell, minority shares for the same price as majority shares.  Because the former includes control and the latter does not.

So I don't get why a discount isn't entirely appropriate.  Especially since it seems that ignoring such a discount would give the minority shareholder a windfall -- a benefit that s/he would not receive in the actual marketplace for those minority shares.

Everything else in the opinion seems right.  But not this part.

Monday, November 21, 2016

People v. Ramos (Cal. Ct. App. - Nov. 21, 2016)

The first sentence of today's opinion begins:

"Rafael Ramos was charged with making criminal threats against Nancy Garcia, and elected to represent himself at trial."

Man. That never works out well.  Especially in a criminal threats case.

But the next sentences are even more surprising:

"Prior to opening statements, the trial court removed Ramos from the courtroom for disruptive conduct. No standby counsel was appointed to represent him in his absence. During Ramos’s period of exclusion, the prosecution presented its opening statement and conducted a direct examination of Garcia. Ramos was then permitted to return to the courtroom and participate in the remainder of trial. The jury found him guilty."

What?!  So the trial court booted the defendant, then let the trial go on with no one there for him -- including the direct examination of the victim -- and then let him back in only to cross-examine the main witness . . . having never heard her testimony on direct?!

You can read the subsequent 20 pages if you'd like.  But you should already know how it turns out.

Reversed and remanded for a new trial.

Hopefully one that isn't a farce.

People v. Flores (Cal. Ct. App. - Aug. 23, 2016)

Oh my God.

The first ten pages of this opinion tell the tales of two small children.  The opinion reads like a story out of a concentration camp.  Yet it's all true, and it's all in San Bernardino County.

I'm still stunned, and a bit shaken, from reading the thing.

(And I read a ton of cases.)

That things like this can happen . . . .

Friday, November 18, 2016

Syngenta Seeds v. County of Kauai (9th Cir. - Nov. 18, 2016)

I've seen the relevant corporate farms in Kauai, which grow genetically-modified seeds.  Pretty fields in a pretty place.

But the majority of residents of Kauai aren't especially happy about them.  Both due to the GE portion of genetically-engineered plants as well as do the use of pesticides on the field.

So the County Council passes an ordinance that makes it a much bigger hassle to use pesticides, and that requires warnings to workers and the community. The mayor vetoes the proposed ordinance, even though he's sympathetic to the measure, because the County Attorney has said that it's preempted by state law.  But the County Council overrides the veto, so it's a law.

At which point plaintiffs sue to block the law.  Defendants try to get the district court to certify the case to the Hawaii Supreme Court.  Denied.  Defendants try to avoid summary judgment.  Rejected.  Motion granted.  Defendants appeal, and try to get the Ninth Circuit to certify the case or to reverse the grant of summary judgment.

Rejected again.  District court decision affirmed in its entirety.

I point out to my students that having federal subject matter jurisdiction is sometimes very favorable to one particular side of the dispute.  This is a good example.  Defendants desperately want this case in Hawaii state court, with its particular perspective on these things.  Plaintiffs, however, want federal court, and are able to both get and keep the adjudication there.

That makes a huge difference.

Procedure matters.

Thursday, November 17, 2016

In Re Z.G. (Cal. Ct. App. - Nov. 17, 2016)

It's a testament to how depressing this opinion is that I'm not going to even recite everything that's there.

It was bad enough that one of the kids died.  The opinion begins by saying "Seven-month-old Junior died on March 9, 2015, while sleeping in a bed with Mother and Z.G. Mother found his body wedged between the bed, a pillow and a rolling portable desk. The coroner later determined Junior died from positional asphyxia, and ruled his death was an accident."

That's a tragedy.  How incredibly sad.

Only later in the opinion do you learn some additional details.

"An investigation into the circumstances of Junior’s death revealed that around 2:30 p.m. on Saturday, March 7, 2015, Mother smoked methamphetamine after she returned home from a court ordered parenting class for the criminal case. Mother did not sleep at all that night or the next day.

About 9:00 p.m. on Sunday, Parents put Z.G. and Junior in Mother’s bed for the night. They had another bed and a crib for the kids but often did not use them. Around 10:00 p.m., Mother smoked concentrated cannabis wax.

Around 1:00 a.m. on Monday, March 9, Mother and Father went to sleep in the bed with Junior and Z.G. Around 6:00 a.m., Father put Junior back in the bed, on his side, between Mother and the wall. Father woke Mother, told her both children were in bed with her, and then left for work. When Mother woke about 8:30 a.m. she found Junior face down at the end of the bed, purple and not breathing."

Yep.  Get done with parenting class and promptly smoke some meth.  Stay up for a couple of days straight strung out.  Bring yourself down with some wax.  Wake up with a dead kid.

Nor is this unusual.  "There had been numerous prior child abuse and neglect reports concerning the family, mostly pertaining to Mother’s substance abuse. For example, an August 2014 report noted Mother had used both methamphetamine and marijuana while she was pregnant with Junior."

All this is not only depressing, but makes what at first glace seems like a senseless tragedy into something that was, sadly, not entirely unpredictable.

That's today's story from a different part of Orange County than you see on cable television.

Wednesday, November 16, 2016

People v. Garcia (Cal. Ct. App. -

"In February 2013, the minor was 14 years old, and living in Scottsdale, Arizona. She ran away from home, and obtained a job at a strip club by claiming she was 19 years old. . . .

At the club, the minor met Cierra Robinson. Robinson told the minor she could make more money working as a prostitute than she could as a stripper. The minor told Robinson she did not want to engage in prostitution.

A couple of days later, Robinson introduced the minor to defendant, whom Robinson called Slim or King Slim. Defendant told the minor she was “stunning” and “beautiful,” and he had a great opportunity for her that would involve talking to guys on the phone. Defendant drove the minor and Robinson to a hotel.

Defendant was initially nice and sweet to the minor. Defendant gave her alcohol and marijuana, and told her he had a money-making opportunity for her. Defendant told the minor she was going to work for him as a prostitute. Defendant told her she was not allowed to leave and could not tell anyone else. The minor was scared, and afraid defendant would hit her. She did not try to leave because she “was terrified.” . . .

The minor worked as a prostitute while in Orange County. She walked the streets within boundaries set by defendant so he would know where she was. She was required to regularly check in with defendant, and to text defendant when she had a customer and when she was done. The minor sometimes took her customers to a hotel room paid for by defendant, and sometimes had her “dates” in a car.

The minor gave all the money she earned by working as a prostitute to defendant. Each of the girls was expected to earn $200 per day; if she did not, she would not be allowed to eat dinner.

On two occasions, the minor had sex with defendant. Although she did not want to do so, she was too scared to tell him no or stop it from happening."

Need I remind you that this is a 14-year old?

The things our world sees.

Tuesday, November 15, 2016

People v. Perkins (Cal. Ct. App. - Nov. 14, 2016)

Sometimes, in the middle of an opinion, you read a paragraph that just makes everything else make sense.

So when Justice Nicholson says, in the context of whether it was proper to conduct a joint trial of both of defendant's alleged crimes:

"Second, neither case was more prejudicial than the other or unusually likely to inflame the jury. In one, defendant knocked out, dragged, threatened, raped, and forced oral copulation by a young woman who had her jaw wired shut. In the other, defendant choked, sodomized, raped, and threatened with a knife his young stepdaughter in her mother‟s apartment. Both cases generate strong emotions, but not prejudicially so."

At that point, you (1) know what the case is about, and (2) can figure out the approximate sentence.

And you'd be right.

Monday, November 14, 2016

U.S. v. Lin (9th Cir. - Nov. 14, 2016)

I'm not certain whether the plethora of sex trafficking opinions that I read coming out of the Northern Mariana Islands reflects the relative prevalence of sex trafficking there, a prosecutorial priority in that area, or mere selection for publication of such cases.  Perhaps a combination of the above.

Regardless, today sees yet yet another case from the CNMI that involves an incredibly lengthy (nearly 20 years) sentence for sex trafficking in the CNMI.

You'd think that people would get the message by now, right?

Friday, November 11, 2016

People v. Field (Cal. Ct. App. - July 6, 2016)

I've said some good things recently about good opinions and good people.  So lest I fall totally into an always-feel-good frame of mind, I thought I'd remind myself of some of the other things I see in the various appellate opinions.

Man o' man.

"In 1972, Field convinced a five year-old boy that was playing outside to follow Field inside his home. Once inside, Field molested him. Field was convicted of violating Penal Code section 288."

Molesting a five-year old child.  Bad deal.  In the modern era, you'd be put away for a long, long time.

But that was back in '72.  Different times.  So . . .

"The following year, Field married a woman named Patricia and lived with her and her three sons, whom he adopted."

You can probably figure out what happens next, right?

"From around 1974 to 1981, Field molested his adopted son Joseph. Joseph was about five years old at the time Field started molesting him. Field would fondle and orally copulate Joseph and then force Joseph to fondle him."

Bad enough.  But is that all?  Not even close.

"During this time, Field also was regularly molesting one of his other sons, Eric. Field molested Eric over the course of several years, starting when Eric was around four years old. Field forced Eric to submit to and perform oral copulation. During this same time period, Field also molested a nine-year-old cousin of Joseph and Eric."


At least now the authorities take it seriously.

"Field was convicted of violating Penal Code section 288 for his offenses against Eric. He subsequently was committed to a state hospital for treatment as a mentally disordered sex offender. However, he was kicked out of treatment and sent back to prison because he disregarded the hospital's rules and was 'unamenable to treatment.'"

So I guess he's going to be in prison, or treatment, essentially forever then, right?

Nope.  It's no longer the '70s, but it's still the '80s.

"After Field was released, Field moved to Montana with his wife and Eric."

Yes.  That Eric.

But I'm sure everything will be fine.

"In 1986, Field was convicted of molesting his young neighbor, who was nine or 10 years old at the time, after he kissed the boy all over his genital area and body. He was sentenced to 16 years in prison with eight years suspended."

Third time molesting young boys.  Total recidivism.  Eight total years.  Seems about right.  (Sarcasm alert)

"After Field was released for this offense, for the next eight years, Field would have sex with teenage boys in an attempt to 'change his sexual attraction' from young boys. The boys were reported to be between 15 and 18 years old. Field claimed they were all over the age of 16."

Yeah.  That's just what the doctor ordered, I'm sure.  Shift to teenagers.  No worries there.

"Field became a long haul truck driver so that he could reduce his contact with children. While on the road as a truck driver, Field had sex with prostitutes, both male and female, but stated they were all above the age of consent."

Oh.  Okay.  Problem solved then.  (Note: Sarcasm continues.)

"Also, while working as a truck driver Field was at a truck stop when he saw two young children by themselves. He bought them food and gave them money to play video games. When the manager came by and saw Field with the children, he asked Field if he was related to the children. When Field said no, the manager told the children to leave. In 1991, Field wrote a letter to Joseph and said that if he had the opportunity, he would molest Joseph's three-year-old son. During this time, Field was vocal about his sexual attraction to children."

Geeze.  Seriously.

"In 2006, Field was arrested for possession of amphetamine and controlled substance paraphernalia."

Now that's a good idea.  You've got a serious pedophilia problem, so getting high on amphetamines is probably a great idea.  I'm sure it makes you awesome driving that long-distance truck as well.

"While he was in custody, Field started rubbing the leg and genital area of an inmate he was handcuffed to, despite the man's attempts to stop him. The inmate was a young man in his early 20's."

Oh my.

"Field has been housed at Coalinga State Hospital since 2009. He has not participated in treatment there. Between 2012 and 2013, there were three incidents involving Field at the hospital. Field grabbed the hand of another patient and put it on his crotch. Field also gave another patient an enema after the patient asked for one. A nurse was present outside the open door while Field gave the patient an enema. Finally, Field kissed the forehead of a demented, older male patient and put his arm around him."

To be honest, I'm not that worried about that last thing.  At least in isolation.  Kissing the forehead of a demented old man to comfort him doesn't sound like the worst thing in the universe.  But the other stuff?  Yikes.  So say that there's a lack of control here seems a huge understatement.  And the fact that Mr. Field consistently refuses treatment pretty much says everything you need to know.

One last thing.  "At the time of his trial, Field was 63 years old. He planned to return to work as a truck driver if released."


Thursday, November 10, 2016

In Re Isiah S. (Cal. Ct. App. - Nov. 10, 2016)

I think it'd be really, really hard for me to be a judge in juvenile dependency court.  Of course you see terrible, terrible situations involving abuse, and that'd be horrifying.  But even in the "run of the mill" case, you've got to make incredibly tough decisions involving adoption, parental rights, splitting up siblings, etc.

That's just got to be incredibly hard.  And, unless you totally turn off your emotions, draining.

So when I read opinions like this one, I'm super impressed by the participants.  The lawyers, the judges, everyone.  Even wholly apart from the fact that the panel is unanimous and agrees with the trial court.

It's just a very difficult job, and one that the participants generally perform very well.  Day in and day out.

U.S. v. McCandless (9th Cir. - Nov. 10, 2016)

This is a very well-written opinion.  Especially for a per curiam one.

Judges Wallace, Farris, and Watford carefully evaluate the merits but decide not to overturn the district court's decision not to grant bail in light of a pending habeas petition.  The panel's decision is partly based on the law -- it's (effectively) a mandamus petition, so the standard of review presents a high barrier -- and partly based on the facts.  Both are dispassionately evaluated.

Nicely done.

Wednesday, November 09, 2016

People v. Rodriguez (Cal. Supreme Ct. - Aug. 22, 2016)

I'm not sure I have the heart today to write a really long post about a published opinion.  It's an interesting day, to be sure.  But there are also a lot more things to think about today than whether the Ninth Circuit or the California Court of Appeal got X or Y right in a particular case.  Or at least they seem more pressing today.

But I nonetheless want to say something.  And thought I'd say something positive.  Make today about things that are good.  Things that are pretty.

So I will.

Justice Cuellar writes a pretty darn good opinion here.  Maybe a bit long.  But very persuasive.

He also writes a very good summary of its basic holding.  Which makes the opinion very easy to describe:

"Criminal defendants routinely file motions at the outset of their cases to suppress the evidence against them. When a judge grants such a motion, the prosecution may decide to dismiss the case and refile charges. But if the prosecution does refile such charges, Penal Code section 1538.5, subdivision (p) provides that any suppression motion the defendant subsequently files must be heard by the ―same judge‖ who granted the prior motion so long as that judge is 'available.' The question before us is whether trial courts are vested with discretion to decide whether a judge is available under section 1538.5(p), and if so, what limitations constrain that discretion.

What we hold is that although trial courts possess broad discretion to distribute business within their courts and make determinations concerning the availability of judges, that discretion must be exercised in a manner consistent with constraints imposed by section 1538.5(p). In light of the statute‘s text, as well as its purpose of prohibiting prosecutorial forum shopping, the trial court‘s discretion should be exercised in accordance with the following understanding: A judge may be found unavailable for purposes of section 1538.5(p) only if the trial court, acting in good faith and taking reasonable steps, cannot arrange for that judge to hear the motion. The trial court must make its finding of unavailability on the record."

Sounds exactly right.

There you go.  The world's a better place.

Tuesday, November 08, 2016

People v. Mary H. (Cal. Ct. App. - Nov. 7, 2016)

Should Mary H. be permitted to possess firearms?  You can see why reasonable minds might well differ on the right result.

On the one hand, there's the reason Mary H. got committed to the psychiatric facility in the first place.  We could summarize the facts by simply saying that she's got (or at least had) a problem.  But it'd be even more informative to recite the actual facts, which are these:

"On the morning of August 24, 2014, Mary baked cookies for her boyfriend and his students. She phoned her boyfriend and visited his workplace but was unable to get in touch with him. Upset, Mary returned home, drank two shots of tequila, and overdosed on Zofran and Percocet. At or around 2:30 p.m., she called her adult daughter in Ohio and stated “[s]he was feeling depressed,” “no one care[d] for her,” “she was going to end her life,” and “she can’t handle [her boyfriend].” At or around 5:30 p.m., a tearful Mary called her daughter again and reiterated she was “feeling anxious” and “ending her life.” Mary’s daughter phoned Mary’s boyfriend who contacted 911. A sheriff’s deputy and paramedics arrived at Mary’s home, where Mary confirmed she tried to harm herself. In particular, she told paramedics, “ ‘[N]o one cares for me so I wanted to end it.’ ” Mary was transported to Kern Medical Center (KMC), where she became apneic in the emergency room. Her condition eventually stabilized following oxygen supplementation, intubation, and intravenous administration of Narcan. Mary informed an emergency department physician “she was actively trying to commit suicide.”

In an August 26th phone call with KMC staff, Mary’s daughter related Mary exhibited symptoms of depression for at least 10 years.3 She also had frequent mood swings and “strange thoughts in her mind [she] thinks . . . are for real.” Prior to the most recent suicide attempt, Mary had tried to kill herself via drug overdose on four separate occasions. Nevertheless, she “thinks she has no psychiatric problems and refuses to see a doctor for it.”"

Yep.  That's a problem.  That'll get you a 72-hour psychiatric hold.  At a minimum.

Plus, once she's at the facility, it's not like she's completely cognizant of the relevant issues:

"In an August 26th phone call with KMC staff, Mary’s daughter related Mary exhibited symptoms of depression for at least 10 years.3 She also had frequent mood swings and “strange thoughts in her mind [she] thinks . . . are for real.” Prior to the most recent suicide attempt, Mary had tried to kill herself via drug overdose on four separate occasions. Nevertheless, she “thinks she has no psychiatric problems and refuses to see a doctor for it.”"

That doesn't exactly show deep understanding of the problem.

That said, once she's released, she thinks she can handle a gun or two.  She says:

“I am not a danger to myself or others. And I live in Caliente out in the country, and we have rattle snakes, and I had to kill one in July. [My boyfriend] has a gun and I would like to be able to have the guns out. We have them all locked up. [¶] . . . [¶] “. . . I’m currently seeing a pain specialist and getting acupuncture so I am getting my pain management under control. I don’t have any prescription for any narcotics. I take Excedrin migraine . . . . The prescription that I overdosed on was filled in Ohio in March of 2012. I don’t take them very often so I saved them and the hospital confiscated that and destroyed them. I have no prescription. I have no more narcotics. [¶] . . . [¶] “. . . I have not dr[u]nk. I drink very seldom. And since this episode, I will not drink alcohol ever again. I’m allergic to a lot of stuff and I react to it. I’m sensitive to substances. [¶] . . . [¶] “. . . We had just moved from Tehachapi to Caliente. I lifted a lot of boxes. I have . . . three herniated disks in my back, and I hurt real[ly] bad. I took the [Percocet] pills, and I accidentally drank alcohol and mixed them, which I have never done before and this episode happened. It was purely accident[al]. [¶] . . . [¶] . . . I drank it and I didn’t think about taking the Percocets. . . . I didn’t think about mixing, you know, I usually don’t drink. [¶] . . . [¶] . . . I was upset and had a drink.”

Okay.  So do you let her have guns now?

The trial court says No.  The Court of Appeal affirms.

Monday, November 07, 2016

Maas v. Superior Court (Cal. Ct. App. - Nov. 7, 2016)

Last year, pursuant to Rule 8.512(c), the California Supreme Court granted review of the Court of Appeal's opinion in Maas v. Superior Court on its own motion.

That's a rare thing.  Usually the losing party is the one who petitions for review.  It's extraordinarily uncommon for the California Supreme Court to reach down and grant review itself.  Especially when, as here, there doesn't appear to have been anyone -- no amici, no interested parties, no one -- who asked the Court to take a look at the thing.

So, when a higher court itself reaches out to review a lower court's opinion, it'd be natural to think:  "Uh oh.  They totally don't like that opinion below.  Look for a smackdown.  Or at least a reversal."

After all, why accept review of a published opinion that you like?!  Especially when everyone else seems happy with the opinion as well.

So it wouldn't have been surprising to expect a reversal here.

This morning, the California Supreme Court issues its opinion.

Unanimously affirming the Court of Appeal.

Okay then.  Glad we got that out of the way, eh?

Friday, November 04, 2016

Brown v. Rawson-Neal Psychiatric Hospital (9th Cir. - Nov. 4, 2016)

Judge Graber is nice.  Judge Wallace and Judge Lynn (sitting by designation from Texas) are . . . less nice.

The district court dismisses a complaint with leave to amend pursuant to Rule 12(b)(6), plaintiff fails to amend, and the district court dismisses the lawsuit under Rule 42(b) for "failure to follow a court order".

This is clearly an error.  You're not required to amend.  You can instead stand on the complaint, as plaintiff does here, and appeal.

Plaintiff files precisely such an appeal.  But he argues that his complaint was improperly dismissed under Rule 12(b)(6), and ignores the fact that the district court (wrongly) used Rule 42(b).

Defendants make that point in their opposition brief on appeal, and argue the Rule 42(b) issue on the merits.  Plaintiff then addresses the Rule 42(b) issue in their reply.  Defendants don't ask for a further reply brief, and the issue is addressed at length at oral argument.

The majority opinion holds that plaintiff has waived the relevant (Rule 42) issue by failing to raise it in the opening brief.  Judge Graber dissents, saying that she'd reach the issue, as the Ninth Circuit is clearly permitted (but not required) to do.

The majority says that defendants were prejudiced by the failure to address this issue in the opening brief.  Judge Graber persuasively (in my view) responds to this issue.  But I'll add one more thing to what Judge Graber says.

Defendants did not suffer prejudice not only because they addressed this issue in their opposition and at oral argument, but -- more importantly -- because they were simply flat wrong.  They could have had a million pages of briefing and two years of oral argument on the issue, and all they would have done is wasted oxygen and trees.  Rule 42(b) clearly doesn't apply.  You're not prejudiced when you're so wrong that nothing you could have possibly said could possibly have made a difference. 

Thursday, November 03, 2016

Regalado v. Callaghan (Cal. Ct. App. - Sept. 22, 2016)

Don't install a propane pool heater in an underground vault.  Because propane is heavier than air, and it can collect in the vault, causing an explosion.  As transpired here.

That'll hurt someone.  Seriously.  As well as result in liability of over $6 million.  Again:  As here.

Don't do it.

Wednesday, November 02, 2016

People v. Scott (Cal. Ct. App. - Nov. 1, 2016)

You're rarely able to look at what happens behind closed doors, in chambers, as the justices draft a published opinion.  But what happens here pulls back the curtain a tiny bit.  In an unexpected -- and somewhat embarrassing -- way.

It's one of the many recent cases that's forced to navigate around the various new cases and statutes that govern LWOP sentences given to minors.  Justice Ramirez writes the opinion.  In two places, he responds directly to arguments made by the dissent, saying things like:

"Although the dissent cites Graham as mandating an individualized sentencing decision by the trial court, this requirement is in fact nowhere to be found in Graham."


"We disagree with the dissent’s conclusion that Miller requires the trial court to make an individualized sentencing decision as to juvenile offenders before imposing a de facto LWOP sentence in a nonhomicide case."

There's just one problem.  There's no dissent.  The opinion is unanimous.


So, later, Justice Ramirez amends the opinion to take out all references to the alleged dissent.

Now, there was a dissent back in 2015 in the same case.  But that was the prior appeal; thereafter, the California Supreme Court granted review and remanded the case for reconsideration based upon the Court's intervening decision in Franklin.  That's what this appeal is about.  And in this appeal, there's no dissent.  Justice McKinster, who dissented back in 2015, is now on board for the majority opinion -- which is edited very slightly -- given the California Supreme Court's intervening decision.

But the opinion wasn't edited carefully enough.  Since the cut-and-paste didn't catch the two prior references to the dissent.

But it's all fixed now.

Sierra Club v. Tahoe Regional Planning Agency (9th Cir. - Nov. 2, 2016)

You see a lot of "Keep Tahoe Blue" bumper stickers around California.  For good reason.  It's an awesome place.  It's a lake that's less "blue" now than it was 50 years ago, and that may well become increasingly green -- and that's "green" in a bad way -- as time progresses due to human activity and its effects on the lake.

Judge Schroeder waxes poetic about the lake, its beauty, and the dangers that surround keeping the water pristine.  But, in the end, the Sierra Club loses.  Indeed, even has to pay costs to the other side.

Let's hope the Lake fares better in the future than the Club did today.

Tuesday, November 01, 2016

In Re Bundy (9th Cir. - Oct. 28, 2016)

I'm impressed.

This mandamus petition was argued on October 21, 2016.  The resulting opinion and dissent were published seven days later, on October 28, 2016.

The opinion and dissent total 56 pages.

Incredibly speedy justice.  And good writing by both sides.

It involves a case you've likely already heard about.  Here's the first paragraph of Judge Bybee's opinion, and then the first paragraph of Judge Gould's dissent.

Judge Bybee says:

"Attorney Larry Klayman applied to be admitted pro hac vice in the highprofile criminal trial of Cliven Bundy. The district court denied his application without prejudice. Bundy has now asked this court for a writ of mandamus to force the district court to admit Klayman. We decline to do so. Under our decisions, the district court had more than ample cause to turn down Klayman’s application: he is involved in an ethics proceeding before the District of Columbia Bar, and he was not candid with the court about the status of those proceedings; he disclosed that he was twice barred in perpetuity from appearing pro hac vice before judges in the Central District of California and the Southern District of New York, but he failed to list numerous cases—all available on Westlaw or LEXIS—in which he has been reprimanded, denied pro hac vice status, or otherwise sanctioned for violating various local rules; and he has a record of going after judges personally, and shortly after Chief Judge Gloria Navarro denied his application, Bundy filed a frivolous Bivens action against her in her own court. This litany of reasons for denying Klayman pro hac vice status demonstrates that the district court did not abuse its discretion, much less commit clear error."

Wow.  I must say, that's a darn persuasive introduction.

Here's how Judge Gould begins his response:

"We confront in this case an unusual confluence of circumstances. A highly controversial criminal defendant is a few months away from an enormous trial effort in which he and eighteen other individuals are defendants. The defendant’s chosen attorney has been denied admission pro hac vice to the district court, raising in my mind serious concerns about the defendant’s ability to mount a vigorous defense and receive a fair trial. Despite the majority’s expressed apprehensions about the chosen attorney’s willingness to follow the rules of professional conduct and the orders of the district court, while recognizing the high standards for mandamus relief, I would hold that the writ should issue. My concerns about the defendant’s ability to present a strong defense and receive a fundamentally fair trial are simply too great, leading to my dissent."

Personally, I think Judge Bybee has the better of the argument.  The stuff in his opinion about Mr. Klayman is really devastating, I think.  I might well deny the guy pro hac vice status as well (though I might admit him provisionally, and see if he can follow the rules); regardless, I don't think it's a clear abuse of discretion to do so sufficient to justify mandamus relief.

But both opinions are nonetheless worth reading.  They definitely tell a tale.