Rush v. White Corp. (Cal. Ct. App. - July 28, 2017)

Justice Richman savages the appellants in this opinion.

He doesn't like the way they crafted their response to the moving party's separate statement of material facts below.  He doesn't like the way they wrote their briefs.  He doesn't seem to like much of anything about what counsel for appellants have done.

The overwhelming majority of the opinion is about the quality of the briefing, and the arguments therein, rather than on the actual merits of the case.  (Though admittedly these things are intertwined.  A little bit, anyway.)

It's a cautionary tale.  About how to not write your separate statement of material facts.  About how not to write you brief on appeal.

And about how merciless the Court of Appeal can be if you ignore the above counsel.

People v. Arredondo (Cal. Ct. App. - July 28, 2017)

There's a lot here to consider.  A lot.

The majority opinion spans 69 pages.  The dissent is quite lengthy as well.

I'll let the introduction to the dissent set up the issue:

"The relevant facts from trial span a mere three and a half pages of transcript, from which we can glean only that the court allowed an 18-year-old witness—who already had a support person—to testify behind a monitor that entirely blocked defendant’s view of her and vice versa. The court did so to make the witness “more comfortable” because she had become emotional when taking the stand. However, the court did not hear evidence from anyone—medical professionals, for example, or even simply the witness herself— as to the cause and degree of her distress, and the record does not support an implied finding the distress was severe enough to warrant such an invasive accommodation. As I will explain, the trial court’s handling of this situation did not provide a sound basis for depriving Arredondo of his constitutional right."

I'll add to that desription the facts that (1) it's a molestation case, (2) the witnesses were often emotional, and (3) the defendant was sentenced to over 300 years in prison.

There are weighty concerns on both sides.  On the one hand, you definitely want to let the defendant see the critical witnesses against him.  On the other hand, you definitely don't want to make it totally traumatic for witnesses to testify.

The competing views here take a different approach to the appropriate balance.

Check 'em out and see which one comes closer to your own view.

County of San Mateo v. Superior Court (Cal. Ct. App. - July 25, 2017)

Depressing opinion.  Concise holding:

"A 72-foot diseased tree fell on a sleeping child’s tent pitched in a campground that is located within a vast public wilderness park. The park’s owner, the County of San Mateo, contends it is immune as a matter of law for this allegedly dangerous condition of its property under Government Code section 831.2, commonly referred to as the “natural condition immunity.” It states: “Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.”1 (See § 831.2.)

The trial court denied the County’s motion for summary judgment under section 831.2, and we now deny the County’s petition for a writ of mandate seeking to overturn the summary judgment ruling. We conclude there are triable issues of fact as to whether the property here was “unimproved.” . . .

On July 25, 2012, Zachary Rowe and his family were camping in San Mateo County Memorial Park, where they occupied campsite D-1 of Sequoia Flat Campground. Twenty feet from Zachary’s tent stood a 72-foot, diseased tanoak tree suffering from a species of fungus called Armillaria that caused it to fail. In the early morning hours, while Zachary was sleeping, the massive tree fell on Zachary’s tent, crushing him and inflicting catastrophic injuries. .  . .

San Mateo County Memorial Park is property owned by San Mateo County, consisting of approximately 499 wooded acres, with trails. Its campsites are located in a heavily wooded campground area, portions of which were cleared of trees. The campground area contains dozens of campsites as well as amenities such as paved roads, telephones, restrooms (with electricity, sinks and flush toilets), showers, dedicated parking areas, a dumping station and a store. . . .

A professional land surveyor determined there were 34 man-made improvements within 126 feet of where the tree stood, including roadways, bumper logs (which are large trees laid on the ground to keep cars out of camping areas), restrooms, picnic tables, bear boxes, fire pits/barbeque pits, road signs, conductor poles with transformers and a parking bollard. According to the survey map he prepared, which is reproduced as Figure 2 in the appendix to this opinion, the man-made objects closest to the tree were a picnic table and a fire pit in a neighboring campsite, both some 13 feet away from the tree. The map depicts many man-made objects within the tree’s 72-foot striking distance, including a power line within 37 feet at its closest point; two access roads, one of which was 22 feet away at its closest point and the other 61 feet away; and various amenities located in Zachary’s campsite and several neighboring ones. Also close by, but not within the tree’s 72-foot striking distance, were two restrooms, one 113 feet away from the tree, and the other 126 feet away."

Given all this, it's somewhat surprising that the Court of Appeal decided to hear the writ.

In Re A.C. (Cal. Ct. App. - July 21, 2017)

Your usual parental termination appeal typically involves horrible facts.  If there's a jurisdictional dispute, it often involves technical stuff about ICWA (Indian Child Welfare Act) notice.

But this one's different.  And I learned a couple of interesting things that I definitely didn't know previously.

For one thing, this one involves notice not to an Indian tribe, but to Mexico.  Okay.  Didn't know about such a process.  Makes sense.  Just never seen it before.  Since the mother (and children) had lived in Mexico for a fair piece, you want to make sure that Mexico hadn't already entered any orders about the kids or already established jurisdiction.  K.

But here's another thing I didn't know -- and was somewhat surprised to see.  I'm used to seeing ICWA notices, and they're almost invariably sent by mail.  But here, the court communicates (or at least attempts to communicate) with Mexican authorities by e-mail.  I didn't know we did that.

Mind you, it doesn't work.  They never respond.  And that's only after Mexican authorities refuse to pick up the phone after multiple calls.  But the concept of a judge firing off "official" e-mails sent to judges from other countries was definitely something I hadn't seen before.

One last thing.  I've obviously read thousands of cases involving deportations, including but not limited to parents (and children) deported to Mexico.  But I'm pretty confident that this is the first opinion I've ever read involving a parent who was deported from Mexico to the United States.

I'm sure that makes sense as well.  I'm sure there are some U.S. citizens in Mexico that Mexico doesn't want.  So, of course, Mexico has the right to kick them out.

I've just never seen it before.

You've got your usual depressing facts, of course.  Though at least here the intervention by the authorities -- or at least the U.S. authorities -- was fairly prompt:

"On May 21, 2015, Mother, who was born in California, was deported from Mexico to the United States at the San Ysidro Port of Entry. Her two sons, A.C. and E.C., were with her when San Diego Police Department officers responded to a call regarding a female (Mother) who might be unfit to care for her two children. On their arrival, the officers found A.C., then six years old, and E.C., then 15 months old, sitting on the ground with Mother. Mother appeared manic and confused about her detention and expressed irrational beliefs (e.g., she could communicate telepathically). Based on their belief Mother was gravely disabled and unable to care for herself and her two children, the officers detained Mother pursuant to Welfare and Institutions Code section 5150 and transported her to a San Diego County mental health facility for evaluation."

Still.  Deportations from Mexico.  Definitely not used to seeing that.

In Re R.T. (Cal. Supreme Ct. - July 20, 2017)

This seems fine.  I agree with the California Supreme Court that the relevant statute allows kids to be taken away from their parents even if the parent isn't at fault.  The text of the statute sort of says that, and the legislative history makes it clear.  If the kid's in danger, it doesn't matter whether the danger is "because" of the parent.  The state can intervene.

Okay.  That's indeed what the statute says.

But am I really the only one troubled by the consequences -- e.g., the constitutionality -- of such a statutory regime?

That was principally why the one Court of Appeal opinion below held (contrary to today's opinion) that the statute must require fault.  Because to do otherwise, the Court of Appeal thought, might well violate the Due Process Clause.  Can you really take a kid away from the parent when the parent isn't at all at fault?

Let's be clear.  That's precisely what's at stake here.  The minor at issue here is definitely a problem.  She's disobedient, has already had two kids of her own (at 17), throws things at her mother, stays out all night, etc.  Yeah, we want to stop that.

But it's not like the parent doesn't care.  Or doesn't try.  Her hardest, even.  From everything we read in today's opinion, she's trying super hard.  Doing all the things that we'd try as parents.  It's just not working.  (And those of us with children certainly can understand.  We don't have an 100% success rate at everything we try to instill in our children.  Even with respect to the most basic stuff.)

But the California Supreme Court says that doesn't matter.  You can still have your kid taken away from you -- and be declared an "unfit" parent -- even if it's in no way, shape or form your fault.

That's troubling, no?

At least to me.  Apparently not so much to the California Supreme Court.  Because the Court says very very little about that point.  Indeed, it's entire argument in that regard consists of a single paragraph at the end of the opinion.  When, in the context of distinguishing a contrary lower court opinion, the Court basically just concludes that the Due Process Clause isn't violated by taking a kid away from her parents since the statutory regime "includes many subsequent safeguards to ensure that parental rights and authority will be restricted only to the extent necessary for the child‘s safety and welfare" and "is a remarkable system of checks and balances."

That sentiment is small solace, I'd think, to any parent who had their kid taken away from them through what everyone concedes is totally no fault of their own.  As it'd be similarly small solace, I'd imagine, if any of the justices had their own children taken away from them in similar settings.

Which is not to say that I don't get the underlying motivation.  The kid's in trouble.  We need -- or at least want -- to do something.  So even if the parent's not at fault, we may well want to take the kid away.  Because that at least has the possibility of working.

But remember a couple of things.  The first of which is that taking the kid away is hardly a panacea.  Maybe if the results of the juvenile dependency system were uniformly positive I'd take a different view.  But they're not.  A lot of times, kids do worse in that system than with their parents.  And I'd imagine that's even more likely when, as here, the parent is totally trying and is not at all at fault for the minor's delinquency.  So don't for a second think that putting a kid in the "system" means that we are going to solve the problem.  Sometimes it stays the same.  Sometimes it gets even worse.  And the price for all this "progress" (or lack thereof) is inevitably the disruption (or destruction) of a basic and fundamental value:  the relationship between a parent and her child.

And, yes, the system contains a lot of checks and balances.  But, at least until today, one of the most basic of those checks and balances was that kids generally only get taken away when the parent is at fault.  I've read thousands of these cases, and when the kids get taken away, almost invariably, there's parental neglect (drug abuse, violence, etc.) that's a critical component of making that undeniably sad result morally palatable.  Take that way -- take away the need for fault -- and you're taking way what I'd have thought before today was one of the most fundamental of the relevant balances.

Now, I understand that we're trying to do what's best for the kid.  And that's a critical goal.  I too want to try to make every child reach his or her full potential.

But we've got to balance that between (1) the reality that, lots of times, we can't do better than the parents (and, I suspect, there's a darn good chance that the "system" will do no better for the child than her mother has done here), and (2) the devastating consequences to a mother when a child is forcibly removed from her by the state, without her consent, in circumstances in which even the state admits that the mother has done nothing wrong.

Those considerations, at least to me, are worth perhaps a little more than a paragraph of thought and brief platitudes about the "remarkable system of checks and balances" that is the existing dependency regime.

So I think, in short, that I'd take the Due Process argument a bit more seriously, or at least give it more weight, than I think the Court does here.  And maybe even expressly hold that it creates an outside limit on when the state can take children away when, as here, there's no fault at all by the parents.  Unless the state can show that it's likely to do a better job, with some reason to believe that it's efforts at discipline will be more effective than the parent's, I'm super reluctant to say that the Due Process Clause permits the government to take away someone's kid when the parent has done the exact same things that every single one of us would have done under the circumstances.

Food for thought.

People v. Roberts (Cal. Ct. App. - July 18, 2017)

Some things seem common, some things seem strange.

"Sharkey, who had ties to the West Coast Crips (WCC) street gang, was playing dice in downtown San Diego when Roberts, known as "Scrappy," shot her twice in the chest."  Do people really still play dice on the street these days?  And who shoots someone during a dice game for no reason?

"Sharkey claimed that Roberts pointed a gun at her face and said something to the effect of, "[k]eep my name out of your mouth." Roberts's act of pointing the gun at her infuriated Sharkey, who felt extremely disrespected by the act."  Really?!  You feel "disrespected" when someone points a gun at your face?  What an unusual reaction.  (Sarcasm alert)

Lewis v. Superior Court (Cal. Supreme Ct. - July 17, 2017)

I wonder why it is that I find myself agreeing with the California Supreme Court more than perhaps many other courts?  Similar disposition to the justices?  More cases that the court accepts for review that are important and yet often unanimous?  Some other reason?

(Or maybe the predicate's  untrue.  It's distinctly possible that I agree with an equal -- or greater -- number of Ninth Circuit cases, or cases from other courts, but simply read more opinions from those tribunals.)

Regardless, today's opinion is another one that seems spot on to me.  There's probably a fairly strong privacy interest in giving the authorities access to CURES (drug prescription) data.  But there's also a good reason for doing so -- to prevent drug abuse.  So the present regime is permissible.

Works for me.  Even though the ACLU would require more.

U.S. v. Sierra Pacific Industries (9th Cir. - July 13, 2017)

"Nonetheless, this case is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases, and we reiterate the importance of maintaining the appearance of propriety both on and off the bench."

Well, I'm not exactly sure that it's an entirely cautionary tale, since the Ninth Circuit affirms the decision below notwithstanding the judge's (alleged) Twitter account and "forwarded" tweets about the case he was in the midst of adjudicating.

(I say "alleged" because the judge at issue doesn't sign his actual name to the Twitter account, so it's just "alleged" that it's his.)

Snyder & Assocs Aquisitions v. U.S. (9th Cir. - July 13, 2017)

The Ninth Circuit says today, in full:

"Plaintiffs-Appellants’ petition for panel rehearing (Dkt. # 38) is GRANTED. The opinion filed June 16, 2017, is amended as follows: (1) on page two, “millions of plaintiffs’ dollars” is replaced with “plaintiffs’ money”; (2) on page two, “into bankruptcy” is replaced with “out of business”; and (3) all uses of the word “privileges” on pages two, six, fourteen, and twenty are replaced with “authorization.” No further petitions for panel rehearing or rehearing en banc will be considered."

I'm not really sure that the money devoted by plaintiff-appellant to filing that motion was really worth it in retrospect, eh?

Association for LA Deputy Sheriffs v. Superior Court (Cal. Ct. App. - July 11, 2017)

This opinion should be taken up by the California Supreme Court.

It's a split opinion, with a dissent.  The deciding vote is cast (and the majority opinion written) by a superior court judge sitting by designation.  The underlying issue is an important one with widespread impact:  Whether the LA Sheriff's Department is allowed to tell prosecutors the names of officers in the department potentially guilty of serious misconduct, which in turn will help prosecutors to fulfill their Brady and related obligations in criminal cases.

The Court of Appeal says no; that this policy is impermissible.  Prosecutors, the Court of Appeal holds, not only have no duty to obtain this information, but the LASD cannot even voluntarily provide it to prosecutors.  Prosecutors instead have to file a motion.  A motion -- to be clear -- by one arm of the government (and prosecution) against another.

I'm skeptical of the result.  Very skeptical.  But even if the Court of Appeal is right on the merits, it's a critical issue, and one that should be decided by the California Supremes.

Stone Creek v. Omnia Italian Design (9th Cir. - July 11, 2017)

Tons of fun stuff in this tiny little trademark dispute.  Regarding, as Judge McKeown's opinion puts it (tongue in cheek), "the high-stakes world of furniture sales."

Some snippets:

"The facts are somewhat unusual: the alleged infringer, leather furniture manufacturer Omnia Italian Design, Inc. (“Omnia”), admits that it blatantly copied and began selling the same goods branded with the mark of its (now ex) business partner, retail furniture company Stone Creek, Inc. (“Stone Creek”)."

Well now.  That should make the case relatively easy, no?

Actually, no.  Since the district court below found in favor of the defendant.  Albeit in a decision reversed by today's Ninth Circuit opinion.

Another:

"To its credit, Omnia was candid. In an email from the Vice President of Sales, Omnia unequivocally admitted to selling furniture under the STONE CREEK mark. In a move not recommended when litigation is certainly impending, the email observed: 'In this day of internet shopping and surfing, it is unfortunate and probably a nuisance for you that your stores are receiving inquiries regarding these products due to the similar name.'”

Yeah.  Kind of unusual to see that type of honesty.  Refreshing.  But given that the honest party loses in the Ninth Circuit, that's not likely to encourage its repetition, I imagine.

Read the whole thing for a romping good time.  (If you're heavily into IP, anyway.)

Get Those Cases Out (9th Cir. - July 10, 2017)

The summer often sees a broad dump of published opinions.  Some may say that's a result of the excitement of working had over the summer.  Doubtful, for sure.  Others may more plausibly claim that the influx of new law clerks and the outflow of old clerks means that there's an impetus to finally get those lingering opinions done before the old clerks leave.

Either way, today sees not one, not two, not three, but eight different published opinions issued by the Ninth Circuit.  Opinions that run the gamut from the disputed ownership of paintings looted by the Nazis, whether used car dealers have to make their vehicles available for test drives by the disabled, and doctrinal issues involving forum non conveniens,(essentially) tribal sovereign immunity, and quasi-judicial absolute immunity.  Weighty stuff all around.  All alongside more pedestrian matters like whether a particular plaintiff is entitled to social security disability payments.

So there's something for everyone today.  Take your pick and read the one that you think might excite you the most.  It's a grab-bag Monday.

Espejo v. Copley Press (Cal. Ct. App. - July 7, 2017)

Darn it, darn it, darn it.  I was born in the totally wrong era.

The Court of Appeal decides a case today involving a class action brought against the Copley Press, which publishes the San Diego Union Tribune, in which the plaintiffs claimed -- and won -- that the U-T's newspaper delivery people were employees rather than independent contractors.  The Court of Appeal reverses a tiny bit of that victory and remands, but in large part, the merits are affirmed.

Which bums me out, because I too was an alleged "independent contractor" in my youth.  Albeit a newspaper delivery person for the Washington Post back in Virginia.  Back in the days -- and this demonstrates my advanced age -- in which we delivered newspapers by walking door to door, or by riding our bikes, rather than by driving our vehicles.  (Not that my brother and I were old enough to drive anyway.  We were probably twelve or fourteen at the time.)

I'd have been part of a successful class action!  Maybe, anyway.  I could definitely have used the money at the time.  Especially since I was the worst -- literally, the worst -- at the actual "collecting the subscription dues" part of the job.  I bet I worked for a year, getting up super early, and made a total of $10.  Because I had to pay for the papers, I had to collect from the subscribers, and to the degree there was any shortfall in the latter, that was my problem, not the Washington Post's.

Memories of a misspent youth in Virginia.

Padilla-Ramirez v. Bible (9th Cir - July 6, 2017)

Today's Ninth Circuit opinion doesn't necessarily sound like a typical Judge Wallace opinion.

Sure, it reaches the result you'd expect from Judge Wallace.  It's a close immigration case involving a guy who's got a decent argument -- indeed, one that the asylum officer thought was right -- that he'll be tortured or killed if he's sent back to El Salvador.  The guy has nonetheless been kept in detention (read: prison) with no bond hearing, and he thinks that's wrong.  The Second Circuit agrees with him, and says that people like this are entitled to a shot to obtain bond.  But Judge Wallace doesn't think so, and authors and opinion explaining why.

The Second Circuit is left of center, and Judge Wallace most definitely is not.  Understandable.  And with Judge Bybee also on the panel, the result isn't all that surprising.

But the language somewhat is.

This is not a strident, take-no-prisoners opinion.  A type that Judge Wallace has definitely authored on multiple occasions in the past.  Today's opinion is instead downright moderate, at least in tone.  Take a look at Part III.D. of the opinion for a classic example in this regard.  There's tons of stuff in there about how the panel knows it's (allegedly reluctantly) creating a circuit split by disagreeing with the Second Circuit, how immigration law in particular is supposed to be uniform, how it reaches its result an understanding that the Supreme Court might want to take the case up to make the law in all the circuits the same, etc.

That's not what you see in most opinions by Judge Wallace.  Trust me.

Some might argue that, perhaps, Judge Wallace has somewhat mellowed with time.  Maybe that's true, maybe -- quite possibly -- that's not.

Personally, I think the better explanation is found by looking at the third name on the panel.  One who joins Judge Wallace's opinion in full.  Judge McKeown.

Part III.D. sounds exactly like something that she'd write.  Not that I'm saying that she did.  But on occasion, to attempt to persuade another member of the panel, you write stuff that you think will get that person on board.  Stuff that you might not otherwise say if someone else was on your panel.  On occasion even adopting as your own suggestions from that other judge that you'd normally reject (or not have thought worth mentioning) on your own.

I think it quite plausible that the tone of today's opinion is explained in part by such a dynamic.

Which sometimes makes for a much more powerful (and/or palatable) opinion than would otherwise have been issued by a single judge acting on his own.

Petrocelli v. Baker (9th Cir. - July 5, 2017)

It's an ugly case.  You can see why the jury sentenced Mr. Petrocelli to death:

"On March 29, 1982, Petrocelli went on a test drive of a Volkswagen pickup truck with James Wilson, a used car salesman, in Reno, Nevada. At some point during that test drive, Petrocelli shot and killed Wilson. . . .

Nearly a year before killing Wilson, in May 1981, Petrocelli had pleaded guilty in Washington State to kidnaping his girlfriend, Melanie Barker. He had received a suspended sentence conditioned on his completion of a drug treatment program. Petrocelli absconded from the treatment program twice and never completed it. Petrocelli shot and killed Barker in Washington State in October 1981, five months before he killed Wilson in Nevada."

Bad facts for the defendant, for sure.

But the panel unanimously reverses the death sentence due to the admission of an expert's testimony at the penalty phase.  And this is not an isolated occurrence.  As the penultimate paragraph of Judge Fletcher's opinion recounts:

"We have encountered Dr. Gerow before. He testified for the prosecution in Sechrest in very much the same manner he testified for the prosecution in the case before us. Gerow testified that Sechrest “was an incurable sociopath” who was “extremely dangerous and could not be rehabilitated.” Sechrest, 549 F.3d at 813. We held in Sechrest that the combined effect of Gerow’s testimony and an instruction identical to Instruction 5 “had a substantial influence on the jury’s decision to sentence Sechrest to death.” Id. We similarly conclude, in this case, that Gerow’s improperly admitted testimony, understood in the light of Jury Instruction 5, “had [a] substantial and injurious effect or influence in determining the jury’s verdict.”"

Judge Christen's position is perhaps even stronger than the majority.  She says in her concurrence:

"I agree that Petrocelli’s death sentence must be reversed. I write separately because, in my view, even if the State could show that the prosecutor’s tactics had not prejudiced the jury’s verdict, Petrocelli’s case is one of the very few in which deliberate prosecutorial misconduct and egregious trial errors warrant habeas relief. See Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993) (stating that a deliberate and especially egregious trial error, or one that is combined with a pattern of prosecutorial misconduct, might warrant habeas relief, even if the jury’s verdict is not substantially influenced). Brecht’s footnote nine is rarely employed, but the Fifth and Seventh Circuits have each relied on it one time in cases where an error (or errors) did not easily fit into either the “structural error” or “trial error” category. The errors in Petrocelli’s case were equally pervasive, flouted Supreme Court authority, and undermined the integrity of the criminal justice process."

Strong stuff.