People v. Acuna (Cal. Ct. App. - Feb. 28, 2017)

The justices on the Court of Appeal want you to make their jobs easier, not harder.  So try to do so.  If only because, if you fail, you risk having them say something like this about you:

"Appellants argue evidentiary error, insufficiency of evidence, constitutional claims, and miscellany. They fail to show prejudicial evidentiary error, yet appear to assume in their substantial evidence argument that we should disregard the evidence they challenged. Appellants misstate facts and law (despite taking almost a year to prepare the opening brief) and fail to support each factual assertion in their brief with a citation to the record, as required by California Rules of Court, rule 8.204(a)(1)(C). Appellants’ reply brief acknowledges the opening brief’s factual misstatements and defects but dismisses them as inconsequential and nonprejudicial to plaintiff. Appellants thus miss the point that they have the duty on appeal to state the evidence fairly, in the light most favorable to the trial court’s ruling, and record citations are for the benefit of the reviewing court as well as the respondent. (Cites)

Appellants’ neglect is particularly burdensome, given that they submitted 380 pages of initial briefing (114-page opening brief plus 266 pages of addenda of purported facts and objections). For its part, the Attorney General offers this court no help, instead compounding the problem with a 458-page rambling respondent’s brief plus 28-page addendum. Appellants’ 71-page reply brief rounds out the mass. Despite appellants’ defects, we nevertheless endeavor to address their contentions." (emphasis in original)

Not something you want to read.  At least when it's said about you.

U.S. v. Lindsay (9th Cir. - Feb. 27, 2017)

I'm impressed.

The panel's original opinion was filed around a year ago.  I thought that some of Judge Gould's opinion was spot on, but had my doubts about other parts.

Defendants file a petition for rehearing, and Judge Graber is drawn to replace Judge Noonan.

Now, Judge Gould files an amended opinion.  And the amendments are both substantial and make the opinion far more moderate and persuasive, in my view.  Including modifying the test so that the hypotheticals that I discussed in my earlier post now largely come out the right way.  (Judge Gould's amended opinion uses a different hypothetical -- marital status -- rather than my "middle name" and "age" hypotheticals, but the point's now the same.)

I think it's a testament to dedication when a panel substantively modifies its opinion.  It's rare, but it happens.  And when it does, it almost always makes the thing better.  Often substantially so.

People v. Nicolas (Cal. Ct. App. - Feb. 23, 2017)

Don't text and drive.

It's good counsel.  For a plethora of reasons.  For one, you don't want to kill (or even harm) anyone as a result of your distracted driving.  Which definitely exists.

Here's another reason:  Even if you have no prior criminal record, if you text and drive, and the worst happens, you can get six years in prison.

No, seriously.  Six years.

Now, admittedly, this is a pretty horrible crash.  Eighty miles per hour on the freeway, right into the back of a stopped car, with no skid marks.

But that's what sometimes happen when you text and drive.  Even if you don't mean it.

And we still call that vehicular manslaughter with gross negligence.

Vieira Enterprises v. McCoy (Cal. Ct. App. - Feb. 22, 2017)

These sentences from today's opinion neatly encapsulate why Property was the least favorite of my first-year classes in law school:  (Though I like the way Justice Rushing puts them, as well as the snide asides about the quality of counsels' arguments)

"Vieira also contends, if somewhat obliquely, that before being allowed to award such damages, the jury should have been required to determine whether McCoy was an occupant. McCoy, for his part, offers a rather tortured argument to the effect that the occupancy requirement has no application to cases of trespass to an easement, because an easement is an incorporeal hereditament which cannot be occupied or possessed in the usual sense. This contention strikes us as abstract to the point of fanciful. The beneficiary of an easement can certainly be said to occupy or possess, or not to occupy or possess, the land encumbered by the easement."

Oh man.  Trespass to easements and incorporteal heriditaments.  My head is about to explode.

On the downside, reading this 60-page opinion about a $20,000 jury award -- a judgment that gets affirmed in any event -- took away nearly an hour of my life that I'll never get back.

On the upside, at least I didn't have to read the 95-page (!) briefs that the Court of Appeal allowed the parties to file.

So I've got that going for me.  Which is nice.

People v. Camel (Cal. Ct. App. - Feb. 21, 2017)

It's a sign of bad things if you have a car parked on your front lawn.  Driveway:  Fine.  Carport or garage:  Perfect.  But front lawn:  No.  Not classy.

It's even worse if this vehicle (1) has been on the lawn for months; (2) doesn't run; (3) you never work on it; and (4) all you ever do with it is sit in it and smoke week.

That's bad.  Pathetic, really.  I understand the difficulty of getting rid of something that has (at some level) "value".  But just ditch the thing.  Or at least put it somewhere other than on your lawn.

I guess it could be worse.  You might, at least theoretically, put a gun that you used to kill someone in the trunk of that vehicle.

Like here.

Oh, man.  Definitely should have gotten rid of the thing.

Multiple life sentences without the possibility of parole.

People v. Smith (Cal. Ct. App. - Feb. 17, 2017)

"Defendant and another man went to a drug dealer’s home for the purpose of purchasing a quarter-pound of methamphetamine. Defendant was carrying two cell phones, a large knife in a concealed sheath, another knife in a pocket, and $1,300 in cash. They were apprehended by law enforcement before they could enter the dealer’s home. Defendant admitted that he had intended to use the $1,300 to purchase a quarter-pound of methamphetamine. He said that he was a methamphetamine user who was acting as a middleman for a third party. The third party was going to repay him and give him some money and methamphetamine for his help in obtaining the quarter-pound of methamphetamine. Defendant disclaimed ownership of one of the two cell phones seized from his person and did not provide a password or open that phone. He permitted law enforcement to search the other phone, and “messages consistent with drugs sales” were found on it.

Defendant was charged by felony complaint with attempted possession of a controlled substance for sale. He pleaded no contest after the court gave an indicated sentence of a grant of probation conditioned on “60 days county jail to be served on the Weekend Work Program.” Defendant had no prior criminal record."

That's not so bad.  Probation and 60 days of weekend work?  Kind of makes me want to get some knives at buy a quarter pound of meth.

(Not really.)

Bank of New York Mellon v. Citibank (Cal. Ct. App. - Feb. 16, 2017)

When I saw the caption of this case -- which I read before even booting up the opinion -- I thought the case was going to be a huge one.  Bank of New York Mellon.  Citibank.  Those are big banks.  When they fight each other, they presumably fight hard.  Over substantial (read:  high value) things.

But then I read the opinion.  It's a dinky little fight over the $500,000 refinancing of a loan, and which bank ends up holding the bag over what went wrong.

Really?!  Big banks like this can't just settle or otherwise resolve this dispute?

Guess not.

Anyway, Bank of New York Mellon wins for now.  Dismissal of its complaint reversed.

P.S. - The first words of the opinion read: "The Bank of New York Melon appeals . . . ."  It's actually Mellon, not Melon.  Thomas Mellon was a big-time banker, lawyer, and judge.  Melon is a fruit.

Samara v. Matar (Cal. Ct. App. - Feb. 15, 2017)

Every single word of this opinion from earlier today is correct.

And the Supreme Court should nonetheless grant review of the opinion.  On its own initiative, if necessary.

It's an opinion about res judicata.  A topic near and dear to my own heart, admittedly, but also one that's critically important to the efficient functioning of the judiciary.

The case involves both claim and issue preclusion, and the Court of Appeal both properly explains the difference between the two as well as -- with respect to claim preclusion -- why the lower court got it (horribly) wrong.  Spot on.

But the review-worthy portion of the opinion is the part about issue preclusion.

The basic problem is (relatively) easy to explain.  The trial court dismisses a case against Defendant One based on X and Y -- here, on causation as well as on statute of limitations grounds.  Plaintiff appeals, and the Court of Appeals affirms.  But the Court of Appeals only reaches the limitations issue (Y); since it can affirm on that basis alone, it never reaches the causation issue (X).

That same causation issue is relevant (indeed, dispositive) to Plaintiff's case against Defendant Two, which has not yet been resolved in the lower court.

So you've got an issue that was finally resolved in the trial court, and the underlying judgment was affirmed on appeal (but not on those grounds).  Is that issue -- X -- properly subject to issue preclusion?

I'll tell you what I teach to my students:  No.  It's not.  Because, to use my parlance, it wasn't an issue that was subjected to a full and fair opportunity to litigate, since the Court of Appeal never reached that particular issue.  To invest something with issue preclusion, I say, we have to be very confident we're right.  And that includes having the Court of Appeal review it, if necessary.  Here, there was an appeal, but the issue didn't get reviewed.  Hence no issue preclusion.

Justice Perluss says the same thing in today's opinion.  Only more persuasively and at length.  The Court of Appeal says, yep, no issue preclusion.

Here's the rub, though.

There's a California Supreme Court case from 1865 named Skidmore.  Which fairly clearly holds that there is issue preclusion in such a setting.

Yikes!

The Court of Appeal says that Skidmore has been "implicitly overruled" over time.  Not very clearly, I might add, but rather because various courts keep citing the Restatement, which adopts the contrary view of issue preclusion that I've articulated above.  So today's opinion -- like some other Court of Appeal opinions from California over the past several decades -- follow the "right" view rather than Skidmore.

But here's the thing:

(1)  The Ninth Circuit doesn't.  Federal cases interpreting California law seem to think that -- shockingly -- the not-overruled express holding of the California Supreme Court is binding on them.  And,

(2)  Trial courts get confused as well.  Ditto for parties.  'Cause they too, shockingly, occasionally follow the express holding of the California Supreme Court.

Those are understandable, but bad, results.  We should stop them.

So, in my view, the California Supreme Court should grant review of this opinion and expressly overrule Skidmore.

It won't take much time.  I think the opinion will be unanimous.  Heck, the California Supreme Court could just plagiarize the opinion by Justice Perluss, which gets it exactly right.

That'll quickly accomplish a valuable result.  It'll make clear what the res judicata law is here in California.  An issue over which various courts continue to disagree.

I think Justice Perluss might even agree with me; at one point in the opinion, he suggests that the California Supreme Court "might" want to review the issue.  I think the same thing.  But I'm willing to say it far more bluntly.

The California Supreme Court should grant review of this case even if no one files a petition.

In re Miles (Cal. Ct. App. - Feb. 10, 2017)

I had to read this modification three times before I finally understood it:

"On page 9, second full paragraph, change the following last full sentence that appears on that page: 'The tow truck driver give his father a receipt' to 'The tow truck driver gave his father a receipt.'"

I thought:  Wait.  Did the original say that the tow truck driver gave the driver a receipt, when really it was the father who got it?  Or did the original erroneously talk about the tow truck driver's father?  I kept staring at the modification trying to figure it out.  'Cause usually these types of modifications entail edits where the original opinion erroneously refers to the wrong person doing X or Y.

Only on my third reading did I finally get it.  It wasn't a substantive error.  It was just a typo.  "Give" versus "gave".  Something not caught by a spellchecker.

But yeah.  Gave.  That's right.

Grammar.

Geraghty v. Shalizi (Cal. Ct. App. - Feb. 10, 2017)

Nothing at all from the Ninth Circuit or the California appellate courts today.  It's a slow Monday.  I presume everyone's gearing up for huge Valentine's Day plans.

I nonetheless wanted to mention a case from Friday.  Because sometimes, when you're a party, you only have to read the first sentence of the opinion before knowing that you don't need (or want) to read much further.

Like when that first sentence is:

"Plaintiff and former tenant Brian Geraghty seeks to undo the deal he made with his former landlord, defendant Joseph Shalizi."

Yeah, that describes the case.  But it also tells you, by clear implication, who's going to win.

State of Washington v. Trump (9th Cir. - Feb. 9, 2017)

I don't typically spill a lot of (virtual) ink on Ninth Circuit decisions that are already going to receive a fair amount of public attention.  The Ninth Circuit's just-issued per curiam opinion regarding President Trump's executive immigration order will definitely receive the requisite attention.

I'll only mention that justice came (incredibly) swiftly in this case -- and rightly so -- and that the opinion is comprehensive and moderate in both scope and tone.  It's an impressive work product given the rapid deadlines the Ninth Circuit placed itself under.

That said, my educated guess that this particular opinion was given more than the typical amount of attention and priority in chambers, no?

The hard part of the government's case was that the scope of the ban was incredibly broad and, at times, shifting (e.g., its applicability to lawful permanent residents).  The Ninth Circuit (rightly) didn't feel like rewriting the order itself on the fly, and (rightly) didn't trust the non-binding interpretation of the order given by particular White House officials.  Hence the decision on the Due Process Clause.

Going forward, the hardest part of the plaintiff's case remains the validity of the order with respect to people who've never been in the United States, since those individuals have more limited rights under the Due Process Clause.  There's still an Establishment Clause claim there, but in my view, the Ninth Circuit correctly (implicitly) recognized that this was a weaker claim that the Due Process argument, so sidestepped it.  For now.

Rapid -- and much-needed -- justice, however.

People v. Price (Cal. Ct. App. - Feb. 9, 2017)

"Defendant Kiarra Marie Price, then 20 years old, along with two friends, participated in a robbery of Benjamin Merrill during which one of them needlessly and senselessly shot and killed 22-year-old Merrill."

I'm not sure that Justice Stewart needs to say both "needlessly and senselessly".  Seems a bit overkill, if you'll pardon the pun.

Though I agree that the killing was needless.  Senseless, even.

In Re Marriage of Schleich (Cal. Ct. App. - Feb. 8, 2017)

From today's opinion:

"Husband served Wife with the dissolution petition and a $75,000 marital settlement agreement, warning her that “it could get very ugly” if she did not sign the agreement."

Well, he was right about one thing.  It did get ugly.  Very ugly.

But it also turned out extraordinarily bad for Husband.  Who ended up paying way, way more than $75,000.

Lesson of the day:  It often doesn't pay to be overly aggressive with your settlement offers.

U.S. v. Peralta-Sanchez (9th Cir. - Feb.7, 2017)

It's an important case.  Affecting thousands of people every year.

It also involves an important right.  Whether you have a right to an attorney (at your own expense) before being removed from the United States.

The voting line-up is also not surprising given the panel draw.

Judge Bybee, joined by Judge Randy Smith, believes that non-citizens who are caught in the United States and subjected to expedited removal proceedings are not entitled to hire a lawyer at their own expense to defend themselves in those proceedings.

Judge Pregerson dissents, and believes that they possess such a right under the Due Process Clause.

Everyone admits that aliens in the United States possess Due Process rights.  The dispute is about precisely what process is due.

Now, the underlying facts don't matter (at all) to this constitutional issue.  The right to counsel, if it exists, protects "bad" people as well as "good ones".

But I'm confident Judge Pregerson would nonetheless have appreciated it if the underlying facts in this case were slightly different.  Here's this particular individual's history:

"Peralta’s criminal history, including a history of immigration offenses, is extensive. In 1982, Peralta was arrested in Bakersfield, California, under the name Gabriel Sanchez for arson, although these charges were eventually dismissed. He was arrested in 1983 under the same name, again for arson. In 1990, he was arrested in Fresno under the name Rufino Peralta-Sanchez for giving a false identification to a peace officer. Between 1990 and 1996, Peralta collected a string of driving under the influence (DUI) convictions: five misdemeanor convictions and a 1996 felony DUI conviction for which he was sentenced to 16 months in prison. As a result of the 1996 felony DUI conviction, the thenImmigration and Naturalization Service (INS) issued Peralta a Notice to Appear, charging him as removable for having been convicted of an aggravated felony “crime of violence.” Peralta was ordered removed on June 7, 1999.

Peralta returned regularly to the United States. In January 2000, he was again convicted of felony DUI, as well as possession of cocaine, for which he was sentenced to 28 months in prison. Following this conviction, Peralta was convicted of misdemeanor illegal reentry. After serving his sentence, Peralta’s 1999 removal order was reinstated in December 2001, and he was again removed from the United States. Undeterred, Peralta entered the United States again and was convicted of felony reentry in October 2002, for which he received 30 months in prison. After serving this sentence, his 1999 order of removal was again reinstated in July 2004, and he was again removed from the United States. After another illegal reentry, the 1999 deportation order was again reinstated on May 23, 2012, and Peralta was again removed. Three days later, Peralta was again apprehended by Border Patrol agents one mile north of the border, hiding in the brush with two others. He immediately admitted to being a Mexican citizen with no legal documents to enter the United States and, in a post-arrest interview, admitted that he had entered the United States by walking through the desert with the intent to travel to Los Angeles to find work. On July 17, 2012, Peralta was charged with and convicted of misdemeanor illegal reentry and sentenced to time served. He was ordered removed via expedited removal proceeding and removed on July 18. On July 22, Peralta returned again, was arrested, and in November 2012, was convicted of felony illegal reentry and sentenced to 21 months in prison. He was removed on January 30, 2014, and returned on March 7, 2014, bringing us back to this case, which arises out of Peralta’s arrest on March 8, 2014.

FN - In sum, from what we can tell from the record, Peralta has at least eight felony arrests (1982, 1983, 1990, 1996, 2000, 2002 (2), and 2014) and five misdemeanor DUI convictions, and he has been removed from the United States at least four times (1999, 2001, 2004, and 2012)."

Yeah.  You might want better facts than that.  Even with respect to a matter that involves a pure issue of law.  Purely as a matter of atmospherics.

Prather v. AT&T (9th Cir. - Feb. 6, 2017)

Today's opinion lists "Kathleen M. Sullivan" as one of the counsel for Sprint/Nextel.  That's not unusual.  Kathleen M. Sullivan does indeed do a fair number of appeals in the Ninth Circuit.

But the opinion also lists Kathleen M. Sullivan as an attorney at Perkins Coie in Seattle.  Now that was surprising.  Because the Kathleen M. Sullivan I know is a name partner at Quinn Emanuel.

Perhaps there are two relevant Kathleen Sullivans.  Or perhaps -- shudder the thought -- Kathleen M. Sullivan moved firms.

Those familiar with legal superstars will, of course, recognize the third possibility.

The Ninth Circuit intended to list Kathleen M. O'Sullivan as counsel for Sprint/Nextel.  This person.  Not this person.

Both big-time appellate lawyers.  Both huge studs.

But one has an O'.

Sanchez v. Kern Emergency (Cal. Ct. App. - Feb. 2, 2017)

Don't read this opinion if you want to feel comfortable with your child playing high school football.

It's not the most egregious injury ever.  Not even close.  But it's still a bad one.  And could happen to anyone.

People v. Lamb (Cal. Ct. App. - Feb. 2, 2017)

I know I don't have to tell the typical reader of the California Appellate Report not to commit random acts of aggression.  Even tiny ones.  We're generally mellow folk.  Ish.

Still, today's opinion demonstrates just how even tiny things can get out of hand.  With devastating consequences.

Thomas Marler goes to a Vons.  As he's leaving the store, a green Ford pickup truck drives by him slowly.  Maybe looking for a parking spot.  Marler is annoyed, and slaps the back of the pickup with his hand -- a signal to speed it up.

Travis Lamb is driving the pickup.  He's miffed.  He follows Marler to his car, and yells at him "Why did you slap my truck?!"  Marler tries to defuse the situation at that point -- or at least denies that he slapped the truck.

Marler went to the Vons with a friend, Richard Gilroy.  Gilroy and Marler stand next to each other in solidarity.  Lamb's their opponent, and he's outside the pickup at this point.  Words are exchanged.  In a heated fashion.

Lamb eventually goes back to the pickup truck, but then a shoving match ensues between him and Gilroy.  So Lamb throws a punch.  One punch.  He hits Gilroy in the head.  Gilroy falls flat, and hits his head on the pavement, fracturing his skull.  He goes into an irreversible coma, and two weeks later, his family takes him off life support.

Gilroy's dead.  Lamb's convicted of involuntary manslaughter and assault.  And gets sentenced to 16 years in prison.

Not a good day.  For anyone.  All from an initial slap of a pickup truck.

Van v. Language Lines (Cal. Ct. App. - Feb. 1, 2017)

I can see vacating the finding of contempt.  Sure, the plaintiff didn't show up for her deposition, for no good reason.  But there wasn't a preexisting court order.  Makes sense.

But I was surprised to see the last line, in which the court awarded her costs on appeal.  Yes, she was indeed the prevailing party.

But she was rightly sanctioned below, and although she prevailed, I'm not enthralled with what I see in the record.

I'd have had both sides bear their own costs.

A small point, to be sure.  But still.  Not what I expected at the very end.