Los Angeles County BOS v. Superior Court (Cal. Supreme Ct. - Dec. 29, 2016)

Today's opinion from the California Supreme Court is a close one (4-3), but ultimately holds that municipalities can be required to turn over under the Public Records Act some billing records sent by outside law firms -- at least for litigation that has already concluded.

The second paragraph of Judge Werdegar's dissent suggests that she's not fond of the ruling, and also provides a reminder that we all need to make sure to proofread one final time to ensure that any "track changes" don't get included in the final document.  That paragraph reads:

"With today‘s decision, a majority of the court undermines this pillar of our jurisprudence, finding legal invoices sent from a law firm to its client, although initially protected by the attorney-client privilege, may lose such protection once the subject litigation is concluded. This conclusion finds no support in the plain meaning of the words of the attorney-client privilege as set forth in Evidence Code section 954, and are in fact contrary to a recent decision by this court interpreting the scope of the privilege."  (underlining in original)

On the merits, it's a good debate. Both sides have reasonable positions.

But one side has 4 votes, and the other side has 3.

Davis v. CEC (9th Cir. - Dec. 27, 2016)

How many times do you see laws struck down as violating the Fifteenth Amendment?  Heck, when was the last time you even saw such a thing?!  (Or, as a slightly easier question, what's the Fifteenth Amendment in the first place?)

Chief Justice Thomas tells you most of what you need to know in the first paragraph of today's opinion:

"The Commonwealth of the Northern Mariana Islands restricts voting in certain elections to individuals of 'Northern Marianas descent.' This appeal presents the question of whether this restriction is race-based and violates the Fifteenth Amendment of the Constitution of the United States. We conclude that it does, and we affirm the judgment of the district court."

The Supreme Court struck down a similarly defective statute in Hawaii in 2000.  The Ninth Circuit does the same thing for the CNMI today.

No race-based disenfranchisements, thank you.

McNair v. NCAA (Cal. Ct. App. - Dec. 23, 2016)

Since we're still in the court holiday season -- and hence on published opinion hiatus -- I thought I'd go back and mention the last published opinion rendered before the holidays.

Given that the holiday season includes a ton of football games (both college and pro), it's an opinion that's particularly timely.  If only because it involves a lawsuit brought by Todd McNair, who was a former player and assistant coach.  He doesn't like what the NCAA did to him, so he sued.  A lawsuit that's gone on for many years, and -- as the Court of Appeal notes -- "has been assigned to eight trial judges in five years."  Not exactly what you want, either from the perspective of the litigants or of the system.

Over half a decade ago, the NCAA filed a peremptory challenge to the original judge, then filed an anti-SLAPP motion, which the trial court denied.  The NCAA filed an appeal, which it partially won, and then on remand, the NCAA filed another peremptory challenge that struck the judge who denied its anti-SLAPP motion.  You're allowed to do that under the statute since you prevailed on appeal, and the trial judge accordingly recused himself.

But McNair files a writ, and the Court of Appeal reverses.  The opinion holds that a party is only allowed to paper the judge twice if they obtain a reversal on appeal from a final judgment, whereas the reversal here was from an interlocutory anti-SLAPP appeal.

There's some textual support for that position, since the second sentence of Section 170.6(a)(2) does indeed expressly say "final judgment".  But there's also textual support to the contrary, since the first sentence of exact same section says "a motion under this paragraph may be made following reversal on appeal of a trial court's decision, or following reversal on appeal of a trial court's final judgment."

The Court of Appeal nonetheless holds that the statute is unambiguous.  So we can entirely ignore legislative history, as well as pretty much anything else.  You only get to a paper the judge a second time if you get a reversal of a final judgment.  And since that didn't happen here, no second paper, and we'll reverse the contrary decision below.

At least now we know the rule.

U.S. v. Thomas (9th Cir. - Dec. 20, 2016)

Judge Kozinski asks:

"Joel Leon Thomas, Jr., barely 24 years old when he was sentenced, will be 73 when he gets out of prison. How did a young man get half a century following a conviction for three bank robberies—two of which he wasn’t present for and none of which resulted in physical harm?"

I might add that Mr. Thomas doesn't even have much of a criminal history either.  This isn't someone who's clearly unredeemable.  Yet he'll likely be in prison for pretty much his entire life.

Judge Kozinski thinks Mr. Thomas is in prison forever due to a mistake by the trial judge.  Maybe that's right.  But Judge Kozinski believes so in dissent.  The majority says that it's not a mistake.  It's a result of mandatory minimums; in particular, how they work with the guidelines.  And it's clear that Judge Schroeder is right, at least in part.  Because as she notes, here's the law in the Ninth Circuit:

"The troublesome issue in this case arises because the mandatory minimums must be combined with the sentence imposed on the underlying crimes, to create a very long sentence. Yet this does not make the sentence unreasonable within the meaning of 18 U.S.C. § 3742. We have expressly so recognized. We have held that the district court must impose a mandatory minimum sentence even if doing so “makes it impossible for the judge to impose a total sentence that the court considers reasonable.” United States v. Washington, 462 F.3d 1124, 1140 (9th Cir. 2006)."

So even if the total sentence is unreasonable, there's nothing the judiciary can do about it.

Look, you'll have a hard time arguing that it violates the Eighth Amendment to say that 50 years for a series of bank robberies in necessarily cruel and unusual; i.e., so unreasonable that it's a violation of the Constitution.

But when history looks back and judges the way we punish people, I don't think that it'll view fondly the fact that we threw human lives away forever for crimes in which no one got hurt and in which the defendant had the possibility of living a productive, meaningful life.

A possibility that we deliberately took away.

I'm no fan of bank robberies.  But this seems too much.

Fowler Packing v. Lanier (9th Cir. - Dec. 20, 2016)

The Ninth Circuit invites us in today's opinion to watch the oral argument in order to confirm that the defendants made a particular (important) concession.  (Footnote 4)  That makes sense.  Though it's a 50 minute oral argument.  It might help to identify the particular portion of the argument -- i.e., which minute -- so we don't have to go through the whole thing.  Presumably someone watched it at some point.

The other funny thing is that Judge Gould refers the reader to YouTube to watch the argument.  Okay, I sort of get that.  The Ninth Circuit does indeed post some of its arguments to YouTube.  And I went ahead and watched it there.  Works just fine.  (You can also vote the thing "Up" or "Down", but the Ninth Circuit has disabled comments, so no yapping about the case there.)

But the Ninth Circuit also has its own site where you can watch the thing.  Without ads or anything like that.  Same exact video.  Somewhat funny that we're directed to a for-profit site instead.

POSTSCRIPT - An astute reader notes that footnote 4 contains a reference to minutes 25 to 27 of the video.  Maybe I missed that on a first read, or maybe the reference was added after.  Regardless, I checked out those minutes, and, yep, they're the right ones.  Thanks for that, Judge Gould!

People v. Mickel (Cal. Supreme Ct. - Dec. 19, 2016)

There are no published opinions from the Ninth Circuit today.  Pre-Christmas lull.  There's only one published opinion from the California appellate courts thus far today.  Perhaps inconsistently with the holiday spirit, it's from the California Supreme Court, and it's a case in which the Court unanimously affirms a death sentence.

Not that the prosecution was all that hard.  Defendant admitted that he ambushed and killed a police officer as a "political" statement.  He left a homemade flag next to the officer's body with the phrase "This Is A Political Action. Don‘t Tread On Us‖" written below the image of a snake.  Then he flew to New Hampshire, talked to a reporter, and turned himself in.

He also represented himself at trial.  Or at least sort of did.  He didn't put on any actual defense.  He said he would "sit in silent protest during the guilt phase" and that "not speak or raise any issues until the penalty phase," and during his brief closing statement, he told the jury that he'd explain during the penalty phase why he had killed Officer Mobilio.

Needless to say, it took the jury only 45 minutes to find him guilty.

Then there's the penalty phase.  "During the penalty phase, defendant also testified that he had acted out of a sense of patriotism. Defendant ultimately presented the theory that he had killed Officer Mobilio in order to defend constitutionally guaranteed liberties that he believed the government was infringing, including the right to bear arms. Defendant explained that he came to California to kill a police officer because he wanted his actions to make a national statement. He believed California to be the least gun-friendly state in the country, and where "the war on drugs is fought the hardest." Defendant traveled to California in September 2002 to find a location where he could ambush a police officer, drive back to Washington, and then fly to New Hampshire without being arrested. He explained that he had intentionally chosen New Hampshire as the location where he would be arrested because he believed the New Hampshire Constitution guaranteed the right of revolution."

Yeah. Okay.  Anyway, you can figure out the rest.

Veera v. Banana Republic (Cal. Ct. App. - Dec. 15, 2016)

Here's a nice summary of the opinion, courtesy of Justice Willhite:

"Plaintiffs . . . filed a putative class action against Banana Republic, LLC, a clothing and accessories retailer with stores throughout California, alleging that signs in Banana Republic store windows advertising a 40 percent off sale were false or misleading because they did not disclose that the discount applied only to certain items. . . . In opposition to Banana Republic’s summary judgment motion, plaintiffs produced evidence that in reliance on the allegedly false advertising, they were lured to shop at certain Banana Republic stores and selected various items for purchase at the advertised discount. However, as the items were being rung up at the cash register, plaintiffs were told for the first time that the advertised discount did not apply to their chosen merchandise. Having waited in line to purchase the selected items, and out of frustration and embarrassment, they ultimately bought some (but not all) of the items they chose even though the discount did not apply. The trial court granted summary judgment in favor of Banana Republic, concluding that plaintiffs lacked standing because they failed to raise a triable issue whether they suffered injury in fact and lost money or property. In this appeal by plaintiffs, we conclude that neither the ground cited by the trial court, nor the other grounds raised in Banana Republic’s motion, support summary judgment. Instead, we conclude that on the evidence presented, plaintiffs raised a triable issue whether they lost “money or property sufficient to qualify as injury in fact, i.e., economic injury,” and whether “that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322 (Kwikset).) Therefore, we reverse the judgment."

I'll also say that the underlying facts of the case seem to me to accurately describe how economic injury -- as well as unfair competition -- might well result from allegedly misleading "sale" signs.

Here's one of the plaintiff's story:

"Cherilyn DeAguero testified in her deposition that on November 7, 2010, she and her 14-year-old daughter were driving past a Banana Republic store on Ventura Boulevard in Studio City. DeAguero saw a large red sign in the store window stating in black letters “40 percent off.” She pointed it out to her daughter, and they decided to stop and go shopping. Based on the 40 percent off discount, DeAguero thought she would be able to buy six to eight outfits for her daughter, who required a variety of outfits for auditions in her acting career. . . .

After shopping and trying on outfits for approximately 40 minutes, DeAguero’s daughter chose eight pieces and wore one new outfit out of the dressing room. They went to the register, and the sales clerk began ringing up the items. DeAguero was talking excitedly with the customer behind her, stating “This is great, 40 percent off.” The clerk told her the items she was purchasing were not 40 percent off. DeAguero replied that the sign indicated everything was 40 percent off, but the clerk said the discount did not apply to the items she chose.

DeAguero became embarrassed, noticing that the line behind her was getting long. She found the experience “humiliating,” because she was trying to remain in a budget but did not want to make her daughter return to the dressing room to remove the outfit she was wearing.

She became angry and asked the clerk why the store had “waste[d] [her] time luring [her] in” and which items were 40 percent off. The clerk explained that there were “selected items” throughout the store, even though DeAguero did not see any signs in the store indicating those items.

DeAguero did not ask to speak with a manager because her daughter was embarrassed and was whispering to stop. She ultimately purchased the new items her daughter was wearing because she did not want to embarrass her. She did not buy the other items because they were not 40 percent off."

That's a story that rings familiar -- or at least true -- to me.  Even if you found out at the time that the items weren't 40 percent off, you might still buy them.  If only out of shame.

Now, mind you, the price you paid for the items was still the price that was listed for them.  That's in part why Justice Bigelow dissents.

I'll just mention in passing that people aren't always entirely rational.  Or, to put it more accurately, we often make decisions based upon a series of assessments not all of which can be rationally set forth.

Many, many people will be more inclined to buy a $100 dress if that dress is labelled 40 percent off than they would were that same dress merely listed as $100.  And the industry knows that full well.  That's why "sales" are so popular.  And productive.

Maybe the buyer is making an internal assessment that an $100 dress that originally sold for $167 is a made better -- with higher quality materials -- than a "mere" $100 dress.  Maybe there's some internal joy from getting a "deal".  Maybe there are other things at stake as well.

But having been around people who shop my entire life, I'm confident that "sales" work.  They affect the buyers internal dynamic.  They are persuasive.  And I'd rather be in a world in which "sales" are in fact sales than in a world in which they're not.

Maybe that's irrational.  But it's definitely a desire.

Ryan v. Crown Castle NG Networks (Cal. Ct. App. - Dec. 13, 2016)

Justice Rushing doesn't mince words:

"Plaintiff Patrick S. Ryan brought this action against his former employer, NextG Networks, Inc., and its successor Crown Castle NG Networks Inc. (collectively NextG). He alleged in essence that NextG had breached a promise to grant him lucrative stock options as a condition of his employment. The case went to the jury with an unclear special verdict form and unhelpful instructions."

Whoa.  Tell us what you really think about what the trial court did.

After describing the jury's verdict (and the trial court's refusal to grant a new trial), Justice Rushing goes on:

"We will reverse with instructions to grant a new trial. The court was fully empowered and indeed obligated to make an independent assessment of the adequacy of the verdict. Moreover, the verdict was unmistakably unsound. If viewed as an award of tort damages, it had no foundation in law. If viewed as an award of contract damages, it had no foundation in fact. It is in all likelihood the product of juror confusion, improper compromise, or some combination of the two. Either way the findings of liability are sufficiently suspect that a retrial cannot fairly be limited to damages. Accordingly, we will direct that the court conduct a new trial on all issues unless plaintiff elects to stand on the previous judgment."

The Court of Appeal clearly didn't like pretty much anything that transpired below in this case.

People v. Landry (Cal. Supreme Ct. - Dec. 12, 2016)

The theme for today's opinions from the California Supreme Court and the Ninth Circuit may revolve around the duality of man.

Take Daniel Landry.  He's sentenced to death, and you can easily see why.  He's already serving a sentence of 25 years to life when he kills a fellow prisoner by cutting his throat.  It's a premeditated crime, and hardly Mr. Landry's first.  He's a Nazi Low Rider and it's hard to deter future misconduct in prison absent sentencing someone like this to death.  So you can see why Mr. Landry might well be seen as a monster as well; someone who needs to be "put down" before he kills yet again.

At the same time, Mr. Landry wasn't always like that.  He was a child once.  And his childhood was a nightmare, and undoubtedly profoundly influenced what he would become in the future.  Both of his parents were deaf, and his mother had serious issues herself; she set a ton of fires as a kid, and then "attacked a pregnant neighbor with a knife while the woman was showering and her husband was mowing the lawn."  She married Gary when she was 20 or 21, but there was a ton of fighting -- and I mean, a ton.  And it clearly affected the future Mr. Landry:

"Linda [his mother] was a drug user and extremely neglectful mother. When members of her family would visit, they would discover defendant alone in his play pen, hoarse from crying and yelling. No one had responded to his cries. Linda‟s family installed a light-flickering system to alert her when defendant was crying. The house was filthy and defendant crawled on a floor littered with broken glass and curdled milk. When he was old enough to walk, defendant would get out of his crib and wander the neighborhood. His grandparents, who lived nearby, once discovered him asleep beneath their car. Another time, he was found scavenging for food in the neighbor's garbage cans.

When defendant was four years old, he went to live with his grandparents. . . . When defendant first went to live with his grandparents, he did not talk, but grunted and pointed. He had nightmares and hoarded food beneath his bed. When he returned to his grandparents, they took him to mental health professionals because he seemed inaccessible. He continued to receive psychiatric care, including hospitalization, throughout his childhood and adolescence."

You can see why Mr. Landry was depressed and suicidal.  And, perhaps, why (in part) he became the person he eventually became.

The one we sentence to death.

U.S. v. Rocha-Alvarado (9th Cir. - Dec. 12, 2016)

Doroteo Rocha-Alvarado molests a nine-year old girl, gets deported from the United States, and then is caught illegally reentering the country.  One might view such a person as a monster.

On the other hand, he's reentering the United States in order to buy medicine for his son's kidney transplant.  That's not especially monster-like.

People are complicated beings.

People v. Franklin (Cal. Ct. App. - June 30, 2016)

This is not a good relationship.

"Crystal Delgado dated appellant on and off over a nine-month period from February to November 2013."  Okay, every relationship has its ups and downs.

"They fought frequently . . . ."  Not good, but not necessarily unique.  ". . . . often sending each other vicious text messages. . . ."  Okay, well, you definitely shouldn't do that.  ". . . . and appellant once pulled Delgado’s hair."  Look, when it starts to involve physical violence, that crosses what I think everyone would understand to be an unacceptable line.

"On October 24, 2013, appellant sent Delgado a text message in which he said she would live to regret “fuckin’ with a real gangster.” A few days later, Delgado received another text message from appellant in which he threatened to stomp on her face, break her nose, and crack her teeth."

Not good.  Not good at all.

"In early November 2013 Delgado planned a trip to San Diego with friends to serve drinks at a bachelor party. Appellant did not want her to go, and left a message on Delgado’s voice mail threatening that if she “went to San Diego, he was going to kill [her].” Sometime before attending the party, Delgado posted on social media that she was single, which she later told police appellant had taken personally as indicating disrespect toward him."

Now he's threatening to kill her.  You have to know things are bad at that point.  Really, incredibly bad.

"The day Delgado returned home from the party she found her room ransacked and empty of all of her belongings—only the furniture remained. The television had been pulled from the wall mount, and her laptop, her bedsheets, most of her clothing, and other personal items had all been removed. There were no signs of a break-in. Delgado suspected appellant had burglarized her room with help from her cousin Lexi, who lived in the house with Delgado and Delgado’s mother."

Classy.  Taking every piece of property from your (former?) partner.  Wow.

"Delgado played several voice mail messages she had received from appellant for the police.  In one message, appellant said he was coming right over and threatened to kill Delgado if she didn’t pick up the phone. In another voice message, appellant told Delgado he was going to hide out until he caught her, and declared, “No one’s ever gonna want to fucking see your face, eh. I’m gonna fuck it up, eh. I’m gonna fuck you up, you fucking piece of shit.” Appellant also threatened Delgado’s mother: “You fucking gonna go to a fucking bachelor party, fucker? Fucking piece of shit. Just watch what we do to your mom when she comes home from work.” Finally, appellant threatened to “seriously hurt” Delgado. Delgado told the police she was afraid of appellant because he was an active Jim Town gang member and she believed he would kill her."

And to think I thought it couldn't get worse.

"Later that day, appellant called Delgado and admitted he had taken her property. He promised to return her property if she would agree to meet with him. They met at Guirado Park and appellant got into the front passenger seat of Delgado’s car. Producing a foot-long metal pipe from his jacket, appellant struck Delgado on the head and arms. Appellant switched seats with Delgado and drove around for several hours before taking Delgado to his house where he lived with his mother and sister."

Sweet Jesus.

"They went to a Knights Inn in Pico Rivera, a Pico Viejo gang hangout well outside of Jim Town gang territory to spend the night. Appellant offered to return Delgado’s property to her for $500. . . Delgado went to the restroom and texted her mother. She told her mother she was with appellant and she was hurt. She instructed her mother to agree to pay appellant $500 for the return of her property when appellant called. . . . Appellant and Delgado left Vasquez’s home and drove back to appellant’s house where they spent the night. There, appellant made a video recording on his cell phone of Delgado in which he told her to say appellant had not taken her clothes and she was not being held against her will."

It just gets worse and worse.

Thankfully, Ms. Delgado does not ultimately get killed.  Which is where I was worried that this one might end.  Instead, eventually, on some future day, she calls 911 when she's being followed by Mr. Franklin, and the police discover all of these events and arrest Mr. Franklin.  And he's ultimately convicted.

Oh, yeah.  One more thing.  "At trial, Delgado claimed to have no memory of the events related to this case, and the prosecution presented Detective Steven Lopez’s account of the facts underlying the case as related to him in an interview of Delgado on November 14, 2013."

So sad.

Munoz Santos v. Thomas (9th Cir. - July 28, 2016)

One possible view of this en banc opinion is to perceive it as a classic liberal/conservative split in which the former outnumber the latter in the draw.  And, to a degree, that's true.

The dissent consists of Judges Callahan and Ikuta.  They're definitely outvoted.

But the majority opinion is written by Judge Bybee.  Hardly a huge leftie.  And the eight judges who join his opinion include, amongst others, Judges Clifton and Milan Smith.

That line-up may suggest that one side of the equation might have the better of the argument.

Japanese Village v. FTA (9th Cir. - Dec. 6, 2016)

Bonus question for the day:

The shortened caption for this opinion is "Japanese Village v. FTA."  What's the FTA?

(No peeking).

Answer:

.

.

.

.

.

.

.

.

The Federal Transit Administration.

Give yourself a dollar if you got that one correct.

P.S. - The case is about an extension of the light rail Gold Line in downtown L.A. to meet up with the Blue and Expo Lines.  Basically a two-mile light rail line between 7th & Flower going to 1st and Alameda.  (Which, coincidentally enough, is where I parked when I was clerking in L.A.)  A nice convenient connector.  Which, as a result of today's opinion, will go through.  Eventually.

In Re Marriage of Schu (Cal. Ct. App. - Dec. 6, 2016)

I always thought that California was a no-fault divorce state.

I was wrong.

Apparently how much spousal support ("alimony") you receive can vary depending on how much "at fault" you are.  To the extent that -- as here -- the trial court can permissibly deny all spousal support if you've done something sufficiently bad in the marriage.

So here, the Court of Appeal holds:  "California’s so called “No Fault Divorce” law does not require a court to ignore evidence of fault when deciding spousal support. This is especially the case when the spouse seeking support is guilty of domestic violence. The trial court denied Gomez support under Family Code section 4320, subdivisions (i), (m), (n), and (k)1. We affirm."

So, inter alia, domestic violence is one thing that can convince the trial court that you're not entitled to spousal support at all.  (Even when, as here, the one spouse hasn't worked during pretty much the entire marriage, and instead stays home with the kids.)

You might also think that the domestic violence here is of the classic "husband-beats-wife" type.  It's not.  It's the wife who's guilty of domestic violence.  And she's not even touching the husband.  She's instead giving alcohol to unrelated minors (and having sex with one of them) and cutting off her daughter's hair when she won't give her one of her friend's social media passwords.

That conduct permissibly gets you denied spousal support.

U.S. v. Mohamud (9th Cir. - Dec. 5, 2016)

This opinion discusses the making of a terrorist.  By the United States.

That said, I think that Judge Owens seems spot on.  The jury rejected his entrapment defense, and that's a very high barrier to reversal.  The opinion concludes:

"Many young people think and say alarming things that they later disavow, and we will never know if Mohamud—a young man with promise—would have carried out a mass attack absent the FBI’s involvement. But some “promising” young people—Charles Whitman, Timothy McVeigh, and James Holmes, to name a few from a tragically long list—take the next step, leading to horrific consequences. While technology makes it easier to capture the thoughts of these individuals, it also makes it easier for them to commit terrible crimes. Here, the evidence supported the jury’s verdict, and the government’s surveillance, investigation, and prosecution of Mohamud were consistent with constitutional and statutory requirements."

Tragically long indeed.

People v. Williams (Cal. Supreme Ct. - Dec. 5, 2016)

What a terrible crime.  The murder of an eighth-grade girl.  The discussion about the girl's Cabbage Patch dolls -- and the fact that she was from San Diego -- made the facts particularly heartbreaking to me.

The California Supreme Court unanimously affirms the defendant's death sentence.

Defendant makes a not-implausible case that someone else -- George -- was in fact guilty of the crime.  But he's got a hard time explaining his semen on the girl.  And his story about consensual sex didn't cut it with either the jury or the California Supreme Court.

People v. Mejia (Cal. Ct. App. - Nov. 22, 2016)

I thought when I first read this opinion that Mr. Mejia was only sentenced to four years in prison, and freaked out about that fact when I got to the portion of the opinion when Justice McKinster described the facts of his offenses.  (I won't delineate in detail what transpired, but you're free to read the entire opinion for yourself; suffice it to say for now that he was convicted of torture, spousal rape, spousal abuse, and criminal threats.  Offenses that he committed in spades.)

But then, after finishing the full 25 pages, I went and reread the portion about the sentence.  Which turns out was four years on the first count mentioned in the opinion, but 15 to life and 7 to life on two of the other counts.

Which is more in line with what I'd have expected after reading the facts.

Westside Estate Agency, Inc. v. Randall (Cal. Ct. App. - Dec. 1, 2016)

Justice Hoffstadt begins today's opinion by saying:

"We are all familiar with the phrase, “caveat emptor”: Buyer beware. This case deals with its less renowned cousin, “caveat sectorem”: Broker beware."

Much less renowned.

The opinion is not even really about brokers having to be "beware".  It's really about brokers having to follow the statute.

Section 1624 of the Civil Code says that a real estate broker can only be a broker for someone -- e.g., get a commission -- if there's an agreement in writing.  The broker here didn't get a signed agreement authorizing his status as a broker, but instead relied upon an alleged oral agreement.

That's not good enough.

Which means he loses out on a $925,000 commission on a $45 million sale.

Yep.  Follow the statute.  Get the agreement in writing.

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.)

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.

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.

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 . . . .

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.

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.

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.

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.

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?

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."

Crickey.

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."

Wow.

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.

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.

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.

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?

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. 

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.

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."

and

"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.

Oops.

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.

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.

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.

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.

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.

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.

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.

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?

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.

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.

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.

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.