Wednesday, May 31, 2017

U.S. v. Sanchez-Gomez (9th Cir. - May 31, 2017)

By a single vote, the en banc panel holds unconstitutional the Southern District of California's routine practice of shackling every single defendant who appears in court for pretrial proceedings.

Judge Kozinski's majority opinion is, in my view, masterful.  He spends a lot more time on history -- Blackstone, etc. -- than I would, but that's perhaps understandable.  More impressive is that he writes incredibly well; almost lyrically.  In a way that demonstrates that he gets it.  That there's something here that transcends prejudice in front of a jury, inability to take notes, and other assorted practical consequences engendered by shackling.  Instead, he focuses on the dignity of the proceeding:  an intangible, and yet very real and critical, component of criminal justice.  One all-too-often ignored in the modern era of routinized pleas and factory incarceration.  A sample quote from his opinion:

"The most visible and public manifestation of our criminal justice system is the courtroom. Courtrooms are palaces of justice, imbued with a majesty that reflects the gravity of proceedings designed to deprive a person of liberty or even life. A member of the public who wanders into a criminal courtroom must immediately perceive that it is a place where justice is administered with due regard to individuals whom the law presumes to be innocent. That perception cannot prevail if defendants are marched in like convicts on a chain gang. Both the defendant and the public have the right to a dignified, inspiring and open court process. Thus, innocent defendants may not be shackled at any point in the courtroom unless there is an individualized showing of need."

Super impressive.  Made even more so, perhaps, by the fact that Judge Kozinski's vote swung the result.  It was a 6-5 decision.  When (and if) the smart, iconoclastic, libertarian Judge Kozinski is eventually replaced by a knee-jerk partisan, the circuit will be far the worse for it, in my view.

As for who's on the 6 and who's on the 5, it's pretty much what you'd expect.  Though Judge Graber (distressingly) joins the dissent, alongside the usual hardcore conservatives (Ikuta, O'Scannlain, and Callahan) and Judge Silverman, went senior six days after the opinion was taken en banc and hence was eligible to be drawn.

Still, a super close -- and important -- decision.

Tuesday, May 30, 2017

Ledezma-Cosino v. Sessions (9th Cir. - May 30, 2017)

Today's en banc opinion is worth reading in its entirety.  It's about whether it's permissible for Congress to distinguish between "habitual drunkards" and others, and deport the former.  You've got four different opinions on the point, articulating four different views.  They're all great reads.

(I can shorthand the answer for you:  Yes.  So holds a supermajority of the en banc panel.)

Without slighting the importance of the opinions as a whole, or the importance of the questions presented, I just wanted to isolate one portion of one opinion.  Something from Judge Kozinski's concurrence.  Something uniquely personal, and, in that way, perhaps particularly compelling.

Judge Kozinski writes:

"Untold masses were turned away at Ellis Island—or prevented from boarding ships for America—for medical reasons, my grandfather among them. This was a misfortune for those turned away, but excluding aliens for reasons Congress believes sufficient to serve the public welfare is a nigh-unquestioned power of a sovereign nation."

You can get from even this brief quote the tenor of Judge Kozinski's concurrence, in which he articulates his view that Congress (and the President) can do pretty much whatever they want to people who want to come to the United States.

Reading that quote made me wonder:

What would Judge Kozinski's grandfather think of his grandson's concurrence?

Would he agree?  Would he be proud?  Would he think it lacks compassion?

To be clear:  I'm positive that Judge Kozinski's grandfather would be immensely proud (in general) of his grandson and his accomplishments.  I'm only wondering about his (hypothetical) reaction to this particular opinion.

And the larger contextual background of the historical American treatment of Jewish immigrants and refugees only makes the question more salient.

None of which is to imply that the perspective of Judge Kozinski's grandfather is any more (or less) valid than Judge Kozinski's.

But I nonetheless wonder what the guy would think.

(And, were I to reference my own grandfather, when I did so, I'd probably have a fleeting internal thought about what the guy would think about my perspective as I did so.)

Friday, May 26, 2017

Miller v. Ford Motor Co. (9th Cir. - May 26, 2017)

This is one of those cases in which I'm not entirely sure why the panel decides to certify the state law question to the state supreme court.

More accurately, I know why the panel wants to certify the question.  It wants to make sure that it gets the answer right.

But, at least to me, I have a pretty darn good sense of what the right answer is anyway.

The relevant Oregon statute of limitations says that a products liability suit “must be commenced before the later of . . . ten years . . . or . . . the expiration of any statute of repose for an equivalent civil action in the state in which the product was manufactured."

So what if the state in which the product was manufactured has no statute of repose?  Does that mean that there's no limitations period; i.e., you can sue whenever you want?  Even hundreds of years later?

In my mind, it's fairly clear that the answer is "No."  If there's no statute of repose, then there's no "expiration of any statute of repose".  Which in turn means that the limitations period is ten years.

Straightforward statutory interpretation.  Plus it avoids the manifest absurdity of letting someone sue centuries later.

So I'm not sure the need to get the answer right necessitates the delay necessarily engendered by certifying the question to the Oregon Supreme Court.  Seems to me we can do that on our own fairly well.  (For good measure, if the Oregon courts disagree with our conclusion -- or if the Oregon legislature does, for good measure -- they can always interpret or change the relevant statute themselves.)

My attitude might be a bit different if, as is typically the case in these "certified question" opinions, the panel had highlighted various competing approaches by the lower state courts.  But I don't see anything like that at all here.  It doesn't look like there are competing state court opinions interpreting this statute.  It's instead just a straightforward "What does this statute mean?" issue.

So, unless there's something more here, I might well just have decided this case on my own, without the need to burden another court and engendering a delay in the underlying case.

Wednesday, May 24, 2017

EEOC v. McLane Company (9th Cir. - May 24, 2017)

The EEOC wants contact information from the defendant about those female employees the company required to take a strength test (their names, social security numbers, last known address, etc.).  The district court didn't allow the EEOC to discover this information.

The Ninth Circuit reviewed the matter de novo and reversed.  But then the Supreme Court took up the case and said, no, the standard of review is abuse of discretion.

So today, the Ninth Circuit revisits the case under the new standard.

And, in perhaps no great surprise, comes to the exact same conclusion.

Some of the panel's reasoning may also be useful for anyone who wants to obtain similar contact information in analogous types of cases.  Check this out:

"[T]he pedigree information is relevant to the EEOC’s investigation. Ochoa’s charge alleges that McLane’s use of the strength test discriminates on the basis of sex. To decide whether there is any truth to that allegation, the EEOC can of course speak to Ochoa about her experience with taking the test. But the EEOC also wants to contact other McLane employees and applicants for employment who have taken the test to learn more about their experiences. Speaking with those individuals “might cast light” on the allegations against McLane -- whether positively or negatively. To take but one example, the EEOC might learn through such conversations that other female employees have been subjected to adverse employment actions after failing the test when similarly situated male employees have not. Or it might learn the opposite. Either way, the EEOC will be better able to assess whether use of the test has resulted in a pattern or practice of disparate treatment. To pursue that path, however, the EEOC must first learn the test takers’ identities and contact information, which is enough to render the pedigree information relevant to the EEOC’s investigation."

And that's not all:

"McLane contends that, given all of the other information it has produced, the EEOC cannot show that production of the pedigree information is “necessary” to complete its investigation. But the governing standard is not “necessity”; it is relevance. If the EEOC establishes that the evidence it seeks is relevant to the charge under investigation, we have no warrant to decide whether the EEOC could conduct the investigation just as well without it. The EEOC does not have to show a “particularized necessity of access, beyond a showing of mere relevance,” to obtain evidence. University of Pennsylvania v. EEOC, 493 U.S. 182, 188 (1990). Congress has not left it to employers accused of discrimination to decide what evidence may be necessary for the EEOC to complete its investigation. Id. at 193."

What's true for the EEOC is presumably true for other plaintiffs (and their counsel) as well.

A potentially useful holding.

Tuesday, May 23, 2017

In Re Marriage of Janes (Cal. Ct. App. - May 23, 2017)

I think this is a darn good -- and equitable -- opinion by Justice Miller.  The separation agreement was signed in 2010 that says that Wife was entitled to $112,000 of Husband's 401(k) account.  That in turn means that Wife's entitled to that amount in 2014, plus whatever gains (or losses) transpired on those funds.  (As it turns out, gains.)  Because, as of 2010, it was her money.

I also thought the Court of Appeal was right that the relevant date was (probably) the date the agreement was signed, not the date of separation.  That too follows from the analysis.

So good job of the trial court changing its mind on the merits from its initial view.  And good job of the Court of Appeal affirming the correct part of what transpired below (the gains) but reversing the wrong part (the date).

I'd only make one change in the opinion, and it's an admittedly minor one.  Page 10, first paragraph:  "The instant case is distinguishable from Thorne. Wife is seeking the same amount of principle that was awarded to her on April 19—$113,392 of the 401(k) account. In Thorne, the wife was seeking to change the amount of principle she received."

I think those two words should be "principal", not -le.

But otherwise great.

Monday, May 22, 2017

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

Here's another example of that "liberal" Ninth Circuit.

The district court suppresses a defendant's statements because it holds that the police didn't properly advise the defendant of his Miranda rights.

The Ninth Circuit reverses.  The warnings were close enough.

And this ain't some hard-core conservative-stacked panel, either.  The panel consists of Judges Gould, Clifton and Watford.

Friday, May 19, 2017

Olivas v. State of Nevada (9th Cir. - May 19, 2017)

There shouldn't be any surprise that today's opinion by the Ninth Circuit is so short.  Or that it did not require oral argument.  Or that it was published a mere nine days after the matter was submitted.  Or that the panel unanimously reversed.

The only surprise is how the district court could have possibly gotten the matter so wrong.

Of course the Prison Litigation Reform Act, which imposes heightened pleading requirements on prisoners, only applies to actual prisoners -- i.e., people incarcerated at the time.  Sure, there's no definition of the term "prisoner".  But when the statute says the court “shall review . . . a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity," that means you review it if the prisoner's actually been a prisoner.  If the person has been released from prison -- ten years ago or ten days ago -- they're not subject to this rule.

So if they file a lawsuit after they're released from prison, they're like the rest of us.  With an unencumbered right to access to the judiciary.

The appeal is easy not only because the panel's so obviously right on the merits, but also because the district court was clearly being super harsh here.  Plaintiff got shot by a guard with a shotgun to the face, and among other things, lost an eye.  Shockingly, he thought that might constitute excessive force.  But the district court dismissed the complaint at the pleading stage.

Now, maybe, as a factual matter, Mr. Olivas was shot for a good reason.  Maybe he was participating in the fight.  Maybe the guard's an incredibly bad shot.  Those are things we'll eventually have to find out.

But that's neither plaintiff's version of the story, nor what's in his pro se pleading.  So the case pretty clearly gets to go forward.  Or, as the panel says in the footnote at the end of the opinion, albeit in totally extraneous dicta:  "We note that it appears the rigorous screening here did not take all factual allegations as true and weighed imagined countervailing evidence. And, even if it had been proper to conclude that the Complaint failed to state a claim, leave to amend should be freely given. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051–52 (9th Cir. 2003)."

Which gives a hint at the attitude of both the panel towards the district court's ruling as well as the district court's attitude towards the plaintiff.

Kinney v. Clark (Cal. Ct. App. - May 17, 2017)

Back in 2011, I wrote this, in which I simultaneously expressed my appreciation for the merits of the Court of Appeal's opinion as well as my utter shock that the Bar had done utterly nothing about the underlying attorney, Charles Kinney.  I said:

"But as for the Bar:  What the hell?!  The Court of Appeal discusses at great length the long and troubling history of Charles Kinney, who started his vexatious serious of litigations in 2006.  He was declared a vexatious litigant in 2008.  He's subject to a prefiling order, has been sanctioned for tens of thousands of dollars, etc. etc.

So he's certainly been disbarred at this point, right?

Nope.  Not at all.  Hasn't even been subjected to an iota of discipline by the California Bar.  Still free to practice law on behalf of clients and abuse the legal system accordingly."

It's now 2017.  This opinion recounts yet another appeal by Mr. McKinney.  One aptly described by the Court of Appeal as follows:  "This appeal, like the numerous appeals before, lacks merit. We grant Clark’s motion to dismiss the appeal because it is frivolous."

But at least the Bar has now caught up with the times.  Albeit half a decade after even a casual observer like me was stunned that Mr. McKinney hadn't yet been disbarred.  As the Court of Appeal gleefully (at least for me) explains in a footnote:

"Kinney is no longer licensed by the State Bar of California. In June 2016, he was disbarred for his conduct in the Fernwood property litigation as well as his conduct in representing clients in another residential property dispute involving an easement. On the court’s own motion, we take judicial notice of the opinion and order of the State Bar of California Review Department, filed on December 12, 2014 in case numbers 09-O-18100 and 09-O-18750, setting forth the reasons for the recommendation of disbarment (Kinney’s conduct in the property dispute litigation)."


Thursday, May 18, 2017

People v. Cervantes (Cal. Ct. App. - May 18, 2017)

"Defendant] was caught transporting (among other drugs) more than 3,600 doses of methamphetamine with a street value between $111,000 and $222,000. . . . [D]espite his October 18 arrest and release on bail, he was arrested a mere two days later transporting 342 dosage units of methamphetamine with an estimated street value between approximately $10,000 and $20,000."

Yeah.  Probably not the smartest decision in the world to mule another batch of drugs two days after you were caught and arrested for transporting the first batch of drugs.  Especially when you're doing so in a car with expired registration tags, illegally tinted windows, etc.  That sort of makes you an easy target for a police traffic stop and subsequent search of your vehicle.

Gillotti v. Stewart (Cal. Ct. App. - May 18, 2017)

The Court of Appeal publishes this opinion today, which begins by saying:

"In this construction defect lawsuit by a homeowner, the jury found the general contractor -- defendant Estate of William G. Davidson, formerly Davidson Construction (Davidson) -- negligent and liable for some, but not all, alleged violations of building standards under the Right to Repair Act, Civil Code section 895, et seq. (the Act). The estate is a proper party where the decedent was protected by insurance. (Prob. Code, § 550.) (Unless otherwise noted, statutory references that follow are to the Civil Code.) The estate is a proper party where the decedent was protected by insurance. (Prob. Code, § 550.)."

Wait.  I'm unclear.  Who's the proper party where the decedent was protected by the insurance?  The estate?  Please tell me again.

The same repetition was in the unpublished opinion as well.

But let me just say something you shouldn't forget.

The estate is a proper party where the decedent was protected by insurance.

Wednesday, May 17, 2017

Davies v. Benov (9th Cir. - May 17, 2017)

The Ninth Circuit says today:

"We've got some good news, and we've got some bad news.  Bad news first.  You filed a habeas petition over your 5-year prison sentence for drug violations, claiming that an appropriations rider passed by Congress prevents the U.S. from spending money to incarcerate you for growing medical marijuana in compliance with California law.  The district court denied your petition, and we're not letting you out either.  You waived your right to any challenge as part of your plea deal.  Shucks for you.

Here's the good news, though.  You're almost done with your sentence anyway.  You're currently scheduled to be released on August 9, 2017.  That's less than three months away.  So your loss today isn't really a huge one.  And, just to help you, we tried to decide this thing as quickly as we could, including issuing our published opinion only 62 days after oral argument.  Trust us:  It usually takes much more time than that.  So we at least tried to do you a solid there.  And maybe, for some future person who didn't waive his right to challenge his sentence, we'll actually decide whether you're right on the merits.

So sorry about the bad news, but take solace in the fact that you're a free man in 90 days regardless."

The actual opinion isn't as forthright, but I think that's a positive spin on the thing that's not too far off from reality.

Tuesday, May 16, 2017

People v. Hudson (Cal. Ct. App. - May 16, 2017)

When I think of a carjacking, I think of someone putting a gun to someone's head, or throwing them out of the car, or doing stuff like that and then taking their vehicle.  A pretty serious crime.

When I think of vehicle theft, I think of someone taking a car.  Maybe as the guy watches, maybe as he doesn't.  A serious crime as well, but less serious.

The key difference between these two things is "force or fear".  That's what distinguishes the two crimes.  If you're taking the car by force or fear from the other person, it's carjacking.  Otherwise it's merely theft/robbery/whatever.

Imagine that you get in a car (that's not yours) and start driving it away.  Then, as you're slowly driving the thing away, someone sees you, and starts banging on the hood, or the window, or whatever, telling you to stop.  But you don't.

You'd think that the relevant force that was applied there was the other guy's -- the guy trying to stop you.  So that'd still be theft, but not carjacking, since it was someone else's doing.

But, if so, you'd be wrong, according to the Court of Appeal.  You took the car, and did exactly what you needed to (i.e., rolled the thing along) to take it, and no more.  But once someone else grabs the car, now it's carjacking if you don't immediately stop.

Not what I would have thought carjacking entails.

But definitely the law in California now.

People v. Edwards (Cal. Ct. App. - May 16, 2017)

Oh my.

"At midday on May 7, 2012, defendant attacked Shannon Collins, a woman whom he did not know, as she was walking on Broadway in Santa Cruz. He stabbed her neck and torso 12 times. While Collins bled to death, defendant dropped his jacket and his knife near her body. He nonchalantly walked away and threw his blood-stained shirt into a garbage can. Shortly thereafter, defendant was arrested a few blocks away from the crime scene. Defendant had blood spatter on his hands, head, and shoes.

Defendant was calm and cooperative during the in-field showups, which occurred about an hour after the offense. Defendant was then transported to a hospital for evidence collection procedures during which he was also cooperative. About one and a half hours later, he was transported to the police station where he coherently provided biographical data to the police officers."

Why?  Why would someone possibly do this?

"Defendant presented evidence of his extensive history of mental illness. His symptoms included hallucinations, paranoid thoughts, extreme mood fluctuations, and chronically aggressive behavior. Defendant had been given various diagnoses, including schizoaffective disorder bipolar type, schizophrenia, a psychotic disorder not otherwise specified, antisocial personality disorder, and polysubstance abuse. Defendant had engaged in 15 or 16 incidents of violent behavior between 1991 and 2002, many of which were related to his mental illness. Defendant was involuntarily medicated eight times between 1994 and 2011. He met the criteria for the mentally disordered offender program in 1999, 2000, 2002, and 2011. Defendant had no insight into his mental illness and he frequently did not take his medications."

Oh.  I guess now I understand.  Though how incredibly depressing all around.

P.S. - "Defendant believed that if he killed someone, he would be safe and would join the Illuminati cults. Defendant also claimed that the skeletons told him that if he killed someone, he would be free."  Or maybe "Defendant told the police that he had planned to kill a woman because he was frustrated that women did not give him enough attention. He explained that “corrupt” men, men who weighed 300 pounds, and drug dealers received attention from women, but he did not. Defendant stated that he could not take it anymore, and he decided to kill a woman."  Depending on who what version you believe.

Monday, May 15, 2017

U.S. v. Olson (9th Cir. - May 15, 2017)

Judge Fisher, joined by Judge Paez, wants to -- and does -- decide both the particular case at hand as well as the underlying legal issue.

Judge Hurwitz isn't totally irate, but thinks that may go too far.  Saying:

"This case does not turn on whether the government must prove in a misprision prosecution under 18 U.S.C. § 4 that the defendant knew the underlying offense was a felony. As the majority correctly concludes, the evidence at trial sufficed for a misprision conviction even if the government bears that burden of proof.

The majority’s interpretation of the statute may be correct. But, I would leave such analysis for another day, in a case in which it matters to the outcome. See Whitehouse v. Ill. Cent. R. Co., 349 U.S. 366, 372–73 (1955) (“These are perplexing questions. Their difficulty admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.”); PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) (noting “the cardinal principle of judicial restraint” that “if it is not necessary to decide more, it is necessary not to decide more”)."

Judge Hurwitz has a point.  Though so does Judge Fisher.  Sometimes it's nice to actually decide issues rather than let them linger.

Both positions are reasonable, in my view.

Friday, May 12, 2017

In Re A.V. (Cal. Ct. App. - May 12, 2017)

Opinions from the Court of Appeal sometimes give you a glimpse into the lives of the relevant individuals at issue.  Including types of lives that you might not otherwise be extraordinarily familiar with in your immediate surroundings.  And you have to try to piece together what's going on.

Sometimes that's fairly easy.  Sometimes it's not.

For example, today, I'm not totally sure what I think is going on with the juvenile here.  Sometimes I think he's shaping up.  Sometimes I think he's not.

I probably end with the conclusion that, maybe, he's on the edge.  And that my intuitions here are not especially well-founded.

Though, if he's on the edge, truly, I hope for the best for him.

Here's his initial scoop:

"In September 2014, the Sonoma County District Attorney filed a section 602 wardship petition charging minor A.V., age 15, with felony possession of marijuana for sale and misdemeanor possession of concentrated cannabis. (Health & Saf. Code, §§ 11359, 11357, subd. (a).) Three juveniles were caught with hash oil and an electronic vapor cigarette on their high school campus. One of the juveniles told the police he bought them from A.V. When questioned by police, A.V. admitted he sold the items to his classmate. He later admitted to probation he used marijuana regularly."

You read stuff like that all the time.  Not a good sign.  But not unusual.  A 15-year old doing drugs and getting probation.

"A.V. admitted the truth of the allegations with the understanding the court would consider placing him on deferred entry of judgment (DEJ) probation. At disposition, the court placed A.V. on DEJ probation on the conditions, among others, that he complete 150 hours of community service work, write a 1,000-word essay about the effects of marijuana on the adolescent brain, refrain from using or possessing alcohol or drugs, particularly marijuana, and participate in and complete outpatient substance abuse counseling.

On March 2, 2015, probation filed a report indicating that A.V. was regularly attending school, passing all of his classes, had zero disciplinary referrals, was actively working towards completion of his community service hours and was attending an alcohol and drug offender class. He had tested negative for intoxicating substances since his review hearing in December 2014."

Hey now!  All right.  Well done.  Maybe the intervention here made a difference.  Seems like he's cleanup up his act.

"Then, on March 4 and 17, probation filed notices of noncompliance, alleging A.V. violated his DEJ probation by using marijuana and cocaine. On March 2, he tested positive for THC and cocaine. He also tested positive for THC on March 18. On April 1, 2015, probation reported that A.V. admitted he had smoked some marijuana he had acquired before he was placed on probation, because he was depressed about a medical diagnosis he had received. He was unsure why he tested positive for cocaine, because he did not use cocaine."

Aw, man!  Now he's backsliding.  And may well be adding cocaine to the mix.  That's not good at all.  Not at all what we want to see.  All that progress for naught.

"On April 9, 2015, the court vacated deferred entry of judgment, imposed judgment, declared A.V. a ward of the court, and placed him on juvenile probation on the same and additional conditions of probation, including fines and DNA testing. . . . On April 20, 2015, the probation department filed a notice of probation violation (§ 777) alleging that A.V. used marijuana and violated his 7:00 p.m. curfew and the terms of his community detention, by testing positive for marijuana on April 9, 2015, and leaving his house in the middle of the night while on community detention."

Jeeze.  Now I'm feeling super bad about where this is going.  Seen it before.  Too many times.  Sad to see the promise I had hoped from the outset be wasted.

"On October 19, 2015, the probation department filed a notice of probation violation (§ 777) alleging that A.V. used marijuana on October 12 and was cited by police for possessing marijuana on school grounds on October 16. On October 20, 2015, A.V. admitted he violated his probation."

Yep.  So much down the wrong path that, even with all of this, he's even taking his weed to school.


"On November 18, 2015, probation reported that since October 20, 2015, A.V. had followed his court-ordered conditions of probation and abided by his parents’ directives. He was helpful around the house and respectful to his parents. He was a junior in high school, was passing all of his classes, and did not have any tardies, unexcused absences, or behavioral referrals. He had completed Interactive Journaling, and spent most of his summer break successfully completing 150 hours of community service. He had competed three weekends of weekend work crew and was attending drug and alcohol counseling once a week. He had submitted two chemical tests since October 19; both showed diminishing levels of THC."

Seriously?!  Dude!  That's what we want to see!  And I'm not the only one, either.  Sayeth the judge:  "All right. [A.], this is the kind of report we want to see. This is great. I’m glad to see you’re doing so well at school, getting tested, testing clean. You’ve done your community service and everything else we’ve thrown at you. Now we want a period of no violations.” “If you continue the good behavior you had from the last VOP to this date going forward, I think you will end up with a dismissal in February. But you have to show us you can do it for more than a couple months.”

Spot on.  Fingers crossed!

"In February 2016, probation reported on A.V.’s progress. A.V. had completed all of his conditions of probation, including 150 hours of community service, Interactive Journaling, and substance abuse counseling. A.V. spent his free time with his girlfriend and applying for jobs. His mother described his behavior at home as “exceptional.” Since A.V.’s last hearing in November 2015, he had submitted five chemical tests, all of them negative for intoxicating substances. He had no disciplinary issues or unexcused absences at school."

Yes!  Finally.  It's catching.  Maybe all this is actually working.  Belatedly.  But maybe there's hope we're actually -- actually -- making a difference.

"However, his grades had suffered. He had one A, three Ds and was failing English and algebra. On February 19, 2016, the court expressed overall satisfaction with the report but continued the matter to April for evidence of improved grades.  On April 25, 2016, probation reported that A.V. had brought his F in English up to a D. He now had one C, four Ds and an F in algebra. A.V. reported he was working toward improving his grades so he could return to his high school of choice in the fall. He had no disciplinary issues or unexcused absences. Mother continued to find A.V. well behaved and helpful at home. He walked the family dog almost daily, cleaned the pool, and worked from 5:00 p.m. to 10:00 p.m. as a dishwasher at a local restaurant several nights a week. Since the last hearing in February, A.V. had submitted six more chemical tests, all negative for intoxicating substances. The probation department recommended “that all proceedings be dismissed” because A.V. had “completed all of his Court ordered obligations, has continued to submit chemical tests negative for intoxicating substances, and is now actively employed.”"

And that's how it ends.

The performance is spotty, but you have hope.  The grades make you worried, but again, you have hope.

Yet I don't feel like the fight is over here.  I honestly don't know how this eventually turns out.

In particular, whether we ultimately see A.V., as an adult, in some future addition of the California Appellate Report.

Let's hope not.  Let's hope for the best.

Thursday, May 11, 2017

U.S. v. Brugnara (9th Cir. - May 11, 2017)

Mail fraud and wire fraud are bad enough.  But then, while you're defending yourself, to add escape and multiple contempt citations to your charge count?  Seems like adding fuel to the fire.

At least it makes things interesting.

Not that the trial wasn't interesting enough already.  This is not another bank robbery or Ponzi scheme or what have you.  It's rather it's own kind of fraud.  As Judge Wallace explains:

"The events of this case trace back to March 2014, when Luke Brugnara, a former San Francisco real estate tycoon with a fondness for high-end art, agreed to purchase several million dollars’ worth of paintings and other works from art dealer Rose Long for display in his museum. There were two problems: Brugnara had neither the means to pay for the works nor a museum in which to place them."

Uh, yeah.  Those are problems, all right.

Lots of other neat details in the opinion about the underlying fraud.  The trial was also a hoot.  Mr. Brugnara was out of control as he defended himself at trial.  But, ironically, he had a fellow traveler in one of the jurors, who seemed -- before he was dismissed -- to believe the exact sorts of things that Mr. Burgnara believed.  Complete with dueling references to Nazis, etc.

Check it out.

Wednesday, May 10, 2017

O'Neil-Rosales v. Citibank (Cal. Ct. App. - May 10, 2017)

No Ninth Circuit opinions today, and only one Court of Appeal opinion.

Fortunately, you can get the gist of today's opinion merely by quoting one of its footnotes:

"Plaintiff argued below, and continues to argue on appeal, that Rouse v. Law Offices of Rory Clark (S.D.Cal. 2006) 465 F.Supp.2d 1031 (Rouse) compels a different result—i.e., that “the recording of a lien against property based on a default judgment tendered to the County Recorder’s Office is a ministerial function falling outside the ‘any other official proceeding authorized by law’ contemplated in Section 425.16(e).” (Id. at p. 1038.) But, while the act by a county recorder of recording a properly tendered abstract of judgment would appear to be a ministerial function, it is less clear that the act by a judgment creditor of tendering the abstract to the county recorder’s office could be considered ministerial. In any case, we are not bound to follow Rouse (see Howard Contracting v. G.A. MacDonald Const. Co. (1998) 71 Cal.App.4th 38, 52 [federal decisions neither binding nor controlling on matters of state law]), but are bound to follow Rusheen v. Cohen, supra, 37 Cal.4th 1048 (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456 [decisions of the California Supreme Court are binding upon and must be followed by all the state courts of California].)."

Yeah.  That about summarizes it.  It's a lien -- or what appears to be a lien, anyway -- that arguably is abusive.  But it's connected in some way with the result of a prior litigation, so an anti-SLAPP motion can be filed and, as here, result in a dismissal and attorney fee award.

There you have it.

(It's actually a neat little trick.  Get a judgment against Person X.  File a lien against Person X with respect to a Piece of Property that Person X used to own -- but hasn't owned for years -- and that is instead owned by Person Y.  When Person Y seeks to refinance her loan on the Property, the lender may well require Person Y to pay off the lien -- even though it's not against her -- or file a lawsuit to declare the lien invalid.  Filing a lawsuit may well be even more expensive than paying the lien (say, one for $2,000 or so, like here).  So Person Y ends up paying the judgment even though it's not one against her.  Abusive.  But successful, apparently.  Especially if Person Y can't sue the person who filed the lien without both losing on the merits as well as having to pay the other side's fees.  Neat.)

Tuesday, May 09, 2017

In Re Ford Motor Warranty Cases (Cal. Ct. App. - May 8, 2017)

I get it.  If you coordinate a certain series of cases, then add-on cases based on the same basic facts generally need to be coordinated as well.

And that's true even if the judge who's doing the coordination thinks that coordination doesn't make any sense.

Different roles  Different times.  Different decisions.

Writ of mandate granted.

Monday, May 08, 2017

Cameranesi v. Department of Defense (9th Cir. - May 8, 2017)

From today's order:

"Judge Watford voted to grant the petition for rehearing en banc. The petition for rehearing en banc was circulated to the judges of the court, and no judge requested a vote for en banc consideration."

Which I always find funny.  Essentially, Judge Watford voted to take the case en banc, yet the total number of judges voting to take the case en banc was exactly zero.

I know, I know.  There's a difference between "voting to grant a petition for rehearing en banc," on the one hand, and "voting to take the case en banc."  Technically, there was no actual vote, since no one requested a vote.

It's a sign that you know you're in the minority.  You vote for X to happen, but no one else even wants a vote to see if X should happen.  At that point, you give up.  

You're clearly in the minority if you say "Yes" and everyone else says "Meh".

Thursday, May 04, 2017

Clary v. City of Crescent City (Cal. Ct. App. - May 1, 2017)

John Diehl lives in Washington State but owns eight vacant lots in Crescent City.  He doesn't much take care of them, and in a lengthy process, the City eventually made a finding that the overgrown weeds and rubbish on his lots constituted a public nuisance that required abatement and, when Diehl refused to abate the nuisance, placed a lien on his lots for the City‘s abatement costs.

Diehl fought this process tooth and nail, all the way to the Court of Appeal.  With long, discursive briefs defending his alleged right "to allow natural vegetation to flourish on my properties until they are sold for development" and to provide "shelter and foraging habitat for birds and other wildlife" and "replacing carbon dioxide with oxygen."

But no one else saw it that way.  Including the Court of Appeal.  All of these institutions concluded that the blackberry bushes, broom plants, other weedy vegetation, abundant trash and illegally dumped material on these lots were better characterized as "a blight, a habitat for rats and vermin, and an attractive [pun intended, I presume] nuisance."

So Diehl fights what he thinks is a good fight.  But loses.

Though he at least gets a published opinion out of it.  Albeit posthumously.  "Mr. Diehl passed away after the briefing was completed in this appeal," after representing himself both in the Court of Appeal as well as below.

At least he went out fighting, eh?

Dunson v. Cordis Corp. (9th Cir. - April 14, 2017)

I loved reading this opinion.  Crisp, clean, and entirely right.

And about a civil procedure issue too; namely, the relationship between consolidation in state court and removal of "mass actions" under CAFA.

Judge Watford brings a smile to my face.

Wednesday, May 03, 2017

Friedman v. AARP (9th Cir. - May 3, 2017)

If it plausibly looks like a solicitation (or commission), quacks like a solicitation (or commission), and walks like a solicitation (or commission), then, by God, it's a solicitation (or commission).

Or at least that's true at the 12(b)(6) stage of the game.

So holds the Ninth Circuit.  In a huge putative class action in which plaintiffs allege that AARP, the nation's largest (by far) Medigap insurance "provider," actually "solicits" or receives a "commission" (of 4.95%) on the policies it markets.  Notwithstanding not being licensed to do so.

There are still several hoops the lawsuit has to jump through.  The filed rate doctrine, summary judgment, etc.

But the suit was dead as of yesterday.  As of today, it lives.

Tuesday, May 02, 2017

People v. International Fidelity Ins. Co. (Cal. Ct. App. - May 2, 2017)

I'm not a monster fan of the California Style Manual.  Though I readily concede that I don't have a good reason for that distaste.  I'm just used to the Bluebook, which is what's generally used both in federal court as well as in academia (as well as in numerous other state courts).  So having to navigate something different imposes a (very slight) degree of pain.

So when I read this opinion this afternoon, I wasn't sure if my critique was with the California Style Manual or elsewhere.  The relevant portion of which reads:

"Rather, Fidelity relied on inapposite out-of-state authority, namely: State v. Sedam (2005) 34 Kan.App.2d 624 [122 P.3d 829] (Kansas); United States v. King (7th Cir. 2003) 349 F.3d 964 (King) and United States v. Gambino (1992) 809 F.Supp. 1048 (Gambino)."

Okay, I understood that the first case was from Kansas, and the second case was from the Seventh Circuit.  Both, obviously, are outside California.

But what about Gambino?  I get that it's a federal case, so not necessarily binding on the Court of Appeal. Nonetheless, I wanted to know where it was from.  Is this a federal case in California, or elsewhere?  The citation didn't tell me.  Neither in this place nor in the other portions of the opinion in which that case was mentioned.

If that was because the California Style Manual doesn't require a reference to the particular district court, well, so much the worse for the Manual.  Another reason to dislike it.

But then I looked it up.  And, as I suspected, the Style Manual does indeed say to include which district court in the citation.  So I resorted to Mr. Google.  Turns out it's the S.D.N.Y.

So the omission was Justice Nares', not the Manual.

Which is not to say how one cites a case is the most pressing issue in the universe.  Far from it.

But still.  Include the "S.D.N.Y."

Julian v. Mission Community Hospital (Cal. Ct. App. - May 2, 2017)

This is a lengthy opinion, especially for state court.  Even if you discount the fact that the margins are wide.  Fifty-eight single-ish spaced pages.

It's about a middle school teacher in the Los Angeles area who has problems and who ultimately gets placed on a 72-hour psych hold as a result of a pretty serious disturbance in the workplace.

Interesting facts.  Long, long legal analysis.

Monday, May 01, 2017

U.S. v. Velazquez (9th Cir. - May 1, 2017)

Guadalupe Velazquez is looking at a ton of time in prison.  A ton.  She's caught up in a huge drug conspiracy with weapons, etc.

That's no fun for anyone.  Least of all for her.

She has an attorney, but she ends up very -- very -- frustrated with him.  The government gives her a plea deal, but she doesn't want to accept it.  Because it's serious time.  And she doesn't feel like she has a good (or good enough) attorney.

The district court and the magistrate judge do what you often see in these types of cases.  They push Velazquez to accept her lawyer and take the deal.  Not hard.  Not relentlessly.  Softly.  But for those of us who've seen this happen -- in person and in court -- time and time again, it's not difficult to see the reality of what's going down.

Which is not to say it's necessarily reversible error.  And, IMHO, it's definitely not mean-spirited.  All involved -- from the lawyer on up -- sees someone who's her own worst enemy.  Who's going to lose a favorable plea deal as a result of her own personality and/or inability to deal with things as they are.

You see that time and time again.  Both on the criminal side as well as on the civil side.  People are people.  Litigation is stressful.  Especially when you're talking about having to admit a crime and then go to prison for a long time.  Even the most sophisticated of us might not make wise choices in such a context.  And criminal defendants are often far from exceptionally sophisticated.

So everyone tries to help her out.  And, ultimately, they get her to take the deal.  She's then sentenced to ten years in prison.

And promptly appeals.

The Ninth Circuit ultimately reverses and allows her to withdraw her plea.  When you read the opinion, you can see why.  She definitely had a bad relationship with her attorney.  For whatever reason (and, to be clear, I'm not at all necessarily blaming the lawyer).  There was time to remedy this situation, and the district court erred by not doing so.

Judge Kozinski writes a brief concurrence.  The first two sentences of which are definitely right.  "I join Judge Friedland’s thorough opinion without reservation. I write only to note that the judges below acted with what they believed to be Velazquez’s best interest at heart."  I'm totally sure that's correct.  I have zero doubt that everyone was trying to stop Ms. Velazquez from metaphorically shooting herself in the head.

Ditto for the next sentence:  "Even now, withdrawing from the plea may not be wise, but it’s Velazquez’s choice to make."  Absolutely right.

But the last sentence of Judge Kozinski's concurrence strikes me as somewhat strange:  "I hope and trust that the government will accept her choice with generosity and compassion."


Now, that's definitely a nice thing to say.  And it's sweet to see a judge try to put a thumb on the scale, ever so slightly, to try to convince the government to do what's right.  A little moral suasion is often a good thing.  No threat here.  Just an entreaty to do what's right.

Yet I wonder what motivated that line?

I mean, sure, at one level, I absolutely hope that the government treats Ms. Velazquez with generosity and compassion.  I hope that every criminal defendant receives such treatment.  From Ms. Velazquez on down.

But I wonder why Judge Kozinski singles out Ms. Velazquez.  The government has already treated her reasonably well, I imagine (at least from its perspective).  She's basically caught dead to rights and is looking at 40 years.  There's little chance she's actually going to get off at trial.  But they nonetheless offer her a deal where she might end up serving five and ends up serving ten.

Now, ten years is a lot of time.  But, at least under the guidelines, she's looking at way more.  But the government offers her a break in return for making things easier on it.  A big break.

To which Ms. Velazquez responds by making things complicated.  Very complicated.  And if she elects to withdraw her plea at this point, super complicated.

Okay.  Yep.  That's definitely her choice to make.  Her life, her call.

But at the point at which the government has to go to trial (or even defend an appeal), that's a hassle.  We understandably tend not to give people as good of deals at that point.

So if Ms. Velazquez elects, on remand, to obtain the "benefits" of her victory, and withdraws her plea and forces a trial, I'm just not entirely sure what screams out about this case that would make me want to remind the government that it's a great thing to go easy.  To be generous and compassionate.

Again:  Yes, they should do that.  Absolutely.  Don't insist upon 40 years just because you can.  That's not justice.

Similarly, don't retaliate.  Don't get angry and push for the maximum just because she made you go to trial (and beat you in the Ninth Circuit).  That wouldn't be right.

And, yes, this may well be one of those cases in which the underlying laws are incredibly, incredibly harsh.  Take that into account.

But understand that you get a plea deal in part because you're making things easier for everyone.  If you don't do that, don't expect the level of "generosity and compassion" you received before.

We should still treat you as a person.  We should still love you.  We should still seek justice, and only such punishment as would be just.

But you're going to serve more time.  I'm sorry.  That's just the way things work.

Even if that's something that's incredibly hard for you to internalize when you're stuck in an incredibly stressful situation with an attorney you don't respect and are looking at spending a decade in prison.