Thursday, August 31, 2017

Updike v. Multnomah County (9th Cir. - Aug. 31, 2017)

I'm just fine with soft pedaling the facts a bit when the issue is a legal one.  Particularly when you're dealing with a grant of summary judgment, where you have to view the facts in the way that's the most favorable to the non-moving party.  So if an opinion paints a particular picture of one of the parties that's a little bit one-sided, generally, I'm totally fine with that.

That said, the facts of today's opinion may still seem just a bit too shaded even for my flexible tastes.

Not that the plaintiff doesn't have a lot of sympathetic facts going for him.  He's been totally deaf since birth, doesn't read or speak English well, and isn't very good at reading lips (since he's not too familiar with the English words, so don't necessarily know what they look like).  So he relies on American Sign Language (ASL).  That's his basic world, especially since "[a]ll of [his] friends are deaf and [his] ex-wife is deaf."

And when he's arrested and booked and in associated proceedings, he doesn't receive an ASL interpreter, and allegedly suffers harm as a result.  That's definitely too bad.

Judge Gould's opinion recites all of these facts, as well as others.  An opinion that ultimately reverses (in part) the district court's grant of summary judgment to the state.

Okay.  Fair enough.

But, as I said, I have a feeling that what facts are included and what facts are left out may be partly driven by the result Judge Gould reaches.  To take but one example:  you get lots of details about the plaintiff's life and tribulations, but only a glimmer (if that) into why the plaintiff was arrested during a "disturbance" at his home, and learn only late in the opinion that he had also "been booked at MCDC on five previous occasions."

Similarly, Judge Gould's reaction to the plaintiff's interactions with the relevant court personnel might also be viewed as potentially one-sided.  For example, Judge Gould recounts what he describes as a "series of miscommunications" with his pretrial release officer, but my strong sense is that others did not view these events as "miscommunications" but rather simply plaintiff's refusal to do stuff.  Maybe that's why plaintiff himself thought that this officer believed that he "used his hearing impairment as an excuse to violate conditions of his pretrial release."

And when Judge Gould notes that the pretrial officer's log entries noted that the plaintiff had "poor reporting during his time with pretrial services, that [he] used his hearing impairment as the reason for not complying with the conditions of supervision, and that their interactions were challenging because [he] “argued” everything," Judge Gould had a definite response to this impression, saying: "The “hearing impaired, learning impaired, and developmentally disabled individuals engage in a range of coping mechanisms that can give the false impression of uncooperative behavior or lack of remorse.” Armstrong v. Davis, 275 F.3d 849, 867 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499, 504–05 (2005). As a result, it is likely that such individuals may have difficulty interacting with personnel who supervise them. Id. This is one basis that may explain why the interactions between Sacomano and Updike were challenging."  Yeah, maybe.  That's surely one possible explanation.  Though another -- unmentioned -- one might simply be that Updike was in fact an arse, and was actually challenging in the exact same ways a non-deaf person can be challenging.

Again, all this is fine; it's okay, especially on summary judgment, to have a particular take on the facts, and to highlight those that favor the non-moving party as well as the ultimate dispensation of the opinion.

It's just that, when I was reading this opinion, I got a more palpable sense of that reality than I sometimes get reading other opinions about the same subject matter.  So I thought it worth mention.

(None of which, of course, says that Judge Gould's impression is the wrong one.  Just that's it's not necessarily the right one either.)

Wednesday, August 30, 2017

People v. Seals (Cal. Ct. App. - Aug. 27, 2017)

Someone steals something (a phone) that costs $900, but with sales tax, it would cost $972.

Whether that's commercial burglary (a felony) or shoplifting (a misdemeanor) depends on whether  "the value of the property that is taken . . . exceed[s] nine hundred fifty dollars ($950)."

Well?  Does it?

Do you count the sales tax, or not?

I definitely could see competing visions here.  On the one hand, the "value" of the property could be seen as only the $900, since that's the "worth" of the "thing".  On the other hand, its value could be the whole $972, since that's what it would in fact cost -- what a willing buyer and seller would agree on.

The Court of Appeal agrees with the latter approach.  Which is different than courts in some other jurisdictions.

Its reasoning (in part):

"Unlike the sales tax law and administration described in several of the cases from other jurisdictions, California law does not obligate a merchant to collect a sales tax from the customer. This is a significant distinguishing factor. In California, whether the retailer seeks a sales tax reimbursement from the customer is a matter of contract between the buyer and seller. Under this sales tax framework, the addition of sales tax reimbursement to the cost of an item is an indication of that item’s fair market value: the total and highest price to which the willing buyer and seller agree."

That makes sense.  The retailer is paying the tax, so adds it to the cost of the product.  Just like the retailer is paying rent, which is also (albeit less expressly) added to the cost of the product.

Though you see the other side as well:  that the "value" of the property is still only $900, if only as established by (1) the fact that that's what this same product would indeed be sold for (in places with no sales tax, or when exempt from tax), and (2) that's all the retailer loses if the phone is stolen -- as here (since no sales tax is paid).

Tough call.  Though I like the scope and coherence of the Court of Appeal's view here.  It takes the matter seriously, and its analysis is pretty darn good.

Even as I understand that the other side has definitely good arguments as well.

(At minimum, the lesson learned here is (1) don't steal something worth $900, or (2) if you do, steal it from someplace that doesn't charge sales tax.)

Avilez-Rodriguez v. LA Community College District (Cal. Ct. App. - Aug. 29, 2017)

It's not that I don't disagree with the result of this case.  I do.  Or its reasoning.  Which is indeed based on a correct reading and interpretation of the underlying cases.

My only point of divergence is with the panel's reluctance.

Here's the scoop:

When a typical employee gets fired, her time to sue runs from the last day of her work.  Not the date she was notified she was being fired:  her last day of work.  Even if she continues to work for the company a bit after she was notified that she was being terminated.

Here, a tenured professor gets fired.  More concretely, he gets notified that he was denied tenure, which effectively means he's fired.  He continued to work for the university for a little bit after he was notified that his tenured was denied.

When does his time to sue run?

The answer seems obvious to me:  From the date of his last day of work.  And that's exactly what the Court of Appeal holds.  A holding that follows directly from precedent, which the panel's opinion explores at length.

But after reaching that conclusion, the Court of Appeal says:

"We acknowledge that both case law and rational policy considerations may militate in favor of a rule that in cases involving an allegedly discriminatory denial of tenure, the statute of limitations for filing an administrative complaint runs from the date the employee is notified of the final tenure decision. Had our Supreme Court in Romano merely distinguished denial of-tenure cases from the case before it, we might well adopt such a rule. But we cannot ignore the language of Romano or the fact that our highest court expressly questioned and unequivocally criticized cases adopting that approach."

Why so timid?

In my view, "case law and rational policy considerations" militate in favor of precisely the rule the Court of Appeal articulates here, not the other way around.  If the clock for normal employees does not start ticking until they actually leave the company -- even if they're definitively notified on an earlier date that they're being fired -- then that exact same reasoning applies equally to employees who work for a university and who are denied tenure.  They're similarly-situated.  They should be treated the same.

What'd be weird is if they were subject to a different rule.  That's what wouldn't be "rational" or consistent with public policy.  Because being told that you aren't getting tenure (and hence have to stop work on Day Y) and being told that you're being fired (and hence have to stop work on Day Y) are the same thing.  The exact same clock should apply.

So good result.  But an even better one than the panel perceives it to be, IMHO.

Tuesday, August 29, 2017

People v. Drew (Cal. Ct. App. - Aug. 29, 2017)

Sometimes even someone as jaded as I am can't believe what I'm reading:

"Appellant Charles Patrick Drew sexually assaulted Amber Oceja while she was in a diabetic coma, and within two hours of the assault, Oceja died from diabetic ketoacidosis."

What?!  Someone's in a diabetic coma and you take that opportunity to sexually assault her?!  Wow.

Then there's the resulting legal quandry:

"The experts all agreed that since Oceja was already unconscious when the sex crimes occurred, they did not materially contribute to her death. Indeed, it appears she would have died when she did even if appellant had not sexually assaulted her. However, appellant did not just sexually assault Oceja while she was unconscious, he failed to seek medical assistance for her knowing she was in dire physical condition – a fact which would remain hidden as long as she was confined in his motel room."

So does that mean he's guilty of first degree murder?  Even though he didn't contribute to her death (apart from doing nothing -- which, ordinarily, is not a criminal offense)?

Apparently so.

"We hold there was a sufficient causal relationship between this fatal omission and appellant’s sex crimes to support his conviction for first degree felony murder."

Oh, and just when you thought the facts couldn't be any more bizarre:

"At the time this case arose in 2012, appellant was 62 years old and Oceja was 29."

Yep.  That's a 62-year old man sexually assaulting a 29 year old woman when the latter is in a coma and about to die.

What a world.

Monday, August 28, 2017

State of North Dakota v. McCarthy (9th Cir. - Aug. 28, 2017)

I thought that I had suddenly lost substantial intellectual function when I read the caption of today's opinion by the Ninth Circuit.  Or at least needed a new pair of glasses.  Is the plaintiff in this case really North Dakota?!  Because last time I checked, I'm pretty sure North Dakota isn't in the Ninth Circuit.

But yes.  It's true.  North Dakota.  That North Dakota.


So I gotta admit, I was so befuddled by the caption, I skimmed the opinion at first to just figure out how the heck the case was in the Ninth Circuit if it involves North Dakota.  And I had to read a lot of pages just to figure it out.

But then it all made sense.

North Dakota wasn't the plaintiff to begin with.  The Sierra Club was.  It sued to compel the EPA to do something about sulfer dioxide emissions.  And then a bunch of states, led by North Dakota, that didn't want the EPA to do anything intervened in the lawsuit.

Hence why North Dakota leads the caption and argued the case.  Since it was objecting to a consent decree that the EPA and the Sierra Club had entered into to resolve the suit.

Okay, then.  Welcome to California, North Dakota.  You'll find that it's a bit warmer out here than what you're used to.  Especially (at least down here) this week.

As for the merits, though, uh, sorry about that.  North Dakota loses in the district court.  And loses on appeal as well.

Sorry about that.  But I hope that your lawyers at least enjoyed their stay here.

And wore lots of sunscreen.

Friday, August 25, 2017

First Amendment Coalition v. US DOJ (9th Cir. - Aug. 25, 2017)

Don't reveal settlement offers made during mediation, and especially don't reveal settlement offers made during official Ninth Circuit mediations.  Otherwise the Ninth Circuit may well elect to shame you by mentioning you by name.  As happens today to Davis Wright Tremaine associate Jonathan Segal:

"In oral argument before this panel, Jonathan Segal, counsel for appellant, disclosed confidential information related to offers made by his opponent in mediation before the Ninth Circuit Mediation Program. This is in clear violation of Ninth Circuit Rule 33-1(c)(4), which states that any written or oral communication made in Ninth Circuit Mediation Program settlement discussions may not be disclosed to anyone who is not a participant in the mediation. The panel reiterates the importance of maintaining confidentiality in the Ninth Circuit Mediation Program. The wrongfully disclosed information was not considered in deciding the case."

Yeah.  Don't do that.

(Though he did win the appeal.)

In Re Miller (Cal. Ct. App. - Aug. 25, 2017)

A public service announcement from today's opinion on something you might want to look out for the next time you go to your bank:

"Defendant, Patton, and Tate were all members of the 4-Deuce Crips street gang and had committed follow-home robberies with one another, and with others, in the past. The robberies were typically conducted as follows: A “spotter” would go into a bank, locate a person withdrawing a large amount of cash, and identify that person for the others involved in committing the robbery. The “driver” would tail the victim to his or her destination, and the “getter” would take the money. According to Tate, who testified as a witness for the prosecution at trial, they did not always carry a gun during follow-home robberies; it depended on the age, size, and sex of the victim, as well as whether the victim was alone. Tate estimated he had participated in six prior robberies with Patton and seven or eight with defendant."

Particularly since, here, one of the victims dies.

Thursday, August 24, 2017

Rubenstein v. The Gap (Cal. Ct. App. - Aug. 24, 2017)

I'll be the very first person to admit that I know virtually nothing about "factory" or outlet stores.  If only because I don't buy clothing.  Ever.

But what very little I do know seems entirely consistent with Justice Lui's opinion today.  Which holds that it's not fraud (or unfair competition, etc.) for The Gap and Banana Republic to sell cheaper clothes at its "factory stores" that haven't previously been sold in their "regular" stores.  Because the nature of a "factory" store doesn't inherently represent that the same products are available in regular stores; instead, consumers simply expect that stuff in "factory" stores just means it comes from the underlying "factor"; i.e., the brand.

Seems right to me.  Sure, I sort of think that the stuff -- or at least some of the stuff -- in a factory store is probably sold at a "regular" store at a higher price.  But maybe it is, maybe it isn't.  That's up to the store.  I'm buying the stuff I'm buying because it seems like a good deal (or not).  There's no inherent misrepresentation just because you slap a "Gap" label on stuff that The Gap sells at its factory stores.  (Which, of course, was in turn likely produced in some overseas sweatshop.)

So putative class action lawsuit dismissed.

Wednesday, August 23, 2017

People v. Button (Cal. Ct. App. - Aug. 17, 2017)

Every bad relationship is bad in different ways.  As well as sad.  And any such relationship you learn about by reading about it in a Court of Appeal opinion is almost necessarily especially bad and sad.

This is not your typical domestic assault case.  It's nonetheless depressing in its own way.  If only because, in addition to the violence, you can palpably intuit the emotions that the victim must have had even before being punched.

Here are the facts:

"At the time of the charged offenses, Button and the victim, B.D., were students at Palomar College. They had been in a dating relationship for approximately a year and a half and had previously been engaged. Their engagement ended a couple of weeks prior to the incident giving rise to the charged offenses.

Although their engagement had ended, on the day before the incident, Button and B.D. had sexual intercourse. According to B.D., Button told B.D. that they could continue to be "lovers" if she would agree not to reveal the nature of their relationship to anyone.

The next day, B.D. and Button had a class together. During class, B.D. learned that a group of Button's friends were going to a restaurant after class. One of the friends invited B.D. to come along. While B.D. was gathering her belongings after class, everyone left without her. Shortly thereafter, B.D. called Button a couple of times and sent him some text messages. She received no immediate response.

Later that day, B.D. received a call from Button. B.D. asked Button to meet her so that they could talk. They agreed to meet in front of a building on campus. When Button arrived to the meeting, he appeared to be very upset. His hands were clenched and his face and voice conveyed anger. Button accused B.D. of telling two of his friends that they were still dating. B.D. denied the accusation, and Button called her a liar.

B.D. took off her glasses because she was crying. She then stepped forward with her arms open in order to give Button a hug. Button grabbed both of B.D.'s biceps and began squeezing her. B.D. was shocked and struggled to get free. Once B.D. escaped Button's grasp, she slapped Button across the face with an open hand.

Button immediately punched B.D. in the face, twice. B.D.'s hands were at her sides at the time Button punched her. B.D. bent over and blood rushed into her mouth. Immediately after the incident, the two walked to a health services office on campus."

That factual recitation for some reason struck me as especially depressing.  Perhaps because you had a guy who told his former fiancee that he was willing to still have sex with her only if she agreed not to tell anyone they were still doing so, and she agreed.  Informed also by the fact, revealed later in the opinion, that "there was evidence that B.D. outweighed Button by 120 pounds."

And further informed by the fact that B.D.'s injuries were serious ones:  she suffered a concussion as well as three acute fractures of her facial bones.

Depressing all around.

Tuesday, August 22, 2017

In Re Google Header Referral Privacy Litigation (9th Cir. - Aug. 22, 2017)

Google settles a class action, and every single penny of the multi-million dollar settlement goes to (1) the attorneys, and (2) an award of cy pres funds to various privacy organizations -- most of which are at the alma matters of the plaintiffs' counsel.  Objectors object and appeal.

But lose.  The majority says:

"[W]e reject the proposition that the link between the cy pres recipients and class counsel’s alma maters raises a significant question about whether the recipients were selected on the merits. There may be occasions where the nature of the alumni connections between the parties and the recipients could cast doubt on the propriety of the selection process. But here, we have nothing more than a barebones allegation that class counsel graduated from schools that house the Internet research centers that will receive funds.

The claim that counsel’s receipt of a degree from one of these schools taints the settlement can’t be entertained with a straight face."

But Judge Wallace dissents.  And isn't laughing.  He says:

 To me, the fact alone that 47% of the settlement fund is being donated to the alma maters of class counsel raises an issue which, in fairness, the district court should have pursued further in a case such as this. The district court made no serious inquiry to alleviate that concern. . . . In our case, we have a cy pres-only settlement. That alone raises a yellow flag. Furthermore, we have a class settlement before formal class certification. That raises another yellow flag. Lastly, we have almost half of the settlement fund, several million dollars, being given to class counsel’s alma maters. To me, that raises a red flag. I am especially dubious of the inclusion of the Center for Information, Society and Policy at Chicago-Kent Law School (a law school attended by class counsel), which center appears to have inaugurated only a year before the parties herein agreed to their settlement."

That's a lot of flags.

Now, personally, as a professor at a law school, I'm more than happy to see millions of dollars flow my way (or the way or my institution).  And, truthfully, we could definitely do some good stuff with such funds.

But Judge Wallace has a point.  Though the majority does as well.  We want to be a little careful about cy pres settlements that may not actually be the best way to spend the underlying money.

But not too careful.

Monday, August 21, 2017

U.S. v. Castillo-Mendez (9th Cir. - Aug. 21, 2017)

The sun may be disappearing (temporarily, anyway).  The United States may be headed by the former head of a reality show.  But even in the crazy world in which we live, some things do not change.

Like the Ninth Circuit having to consider illegal reentry convictions coming out of San Diego.

Those things happen all the time.  Usually they're not that complicated.  But here, the defendant has a neat defense:  he says he wanted to be caught by the border patrol, in order to escape the hands of his threatening coyote smugglers.

Well, okay then.  If that's true, then he's not guilty of attempted illegal reentry.  It's a factual dispute.  And the district court gave an erroneous instruction.  Which requires the conviction to be reversed.

Still, even though the defendant gets relief here, he still faces a retrial.  And even though I agree that it's not clear beyond a reasonable doubt that no jury would possibly acquit him, I still think the odds are against him in the retrial.

But at least the instructions will be correct.

Thursday, August 17, 2017

Skulason v. California Bureau of Real Estate (Cal. Ct. App. - Aug. 16, 2017)

What Justice Humes says is absolutely right:

"Skulason’s point is well taken. There is no doubt that the Internet substantially increases the ease with which the public can access information that was previously available only “after a diligent search of courthouse files” or other locally kept records. The reality of our electronic age, for better or worse, is that all kinds of public information that was once hard to obtain has become increasingly accessible, including information contained in or related to documents filed in court cases. And there is no doubt that increased access to information about prior convictions brings with it additional, and potentially harmful, collateral consequences."

Reasonable minds might perhaps differ as to what comes after this (insightful) paragraph.  Since the Court of Appeal nonetheless comes out the other way:

"We are sympathetic to Skulason’s concerns, but her remedies lie with the Legislature or the Bureau, not with the courts through a writ of mandate. The Legislature can consider enacting a law to restrict the Bureau’s ability to post documents that refer to convictions that have been dismissed under sections 1203.4 or 1203.4a. And the Bureau, rather than posting such documents unredacted and unexplained, can consider different approaches that might preserve its legitimate interests and still reduce the negative collateral consequences of its current practice. Our role, however, is limited to deciding whether existing law requires the Bureau, as ordered by the trial court, to “remove any and all documents containing information about [Skulason’s] expunged and/or dismissed convictions from its public website and publicly searchable database.” We conclude that it does not, and the court therefore erred by granting the petition for a writ of mandate."

There's nonetheless no doubt that the Internet is a double-edged sword.

P.S. - The case is also a pretty good example of the Streisand effect.  Before the lawsuit, someone had to deliberately go on the Bureau of Real Estate's web page and look up Ms. Skulason's license to find out about her "expunged" convictions.  Now, by contrast, with the publication of the opinion, I would fully expect that every time someone googles the name "Belinda Skulason", one of the very first hits will be a discussion of Ms. Skulason's previous offenses.  Particularly since "Belinda Skulason" isn't an extraordinarily common name.  (As of today the district court docket sheet is Result No. 9, an amicus brief is No. 11, and the Court of Appeal's opinion is No. 16.  And I'm guessing those results will move up over time.)

Wednesday, August 16, 2017

Ponte v. County of Calaveras (Cal. Ct. App. - Aug. 16, 2017)

This introductory paragraph really gets to the heart of the matter:

"Plaintiff Dennis Ponte is asking defendant County of Calaveras (County) to pay him over $150,000 to reimburse him for work purportedly performed on the County’s behalf pursuant to an oral contract. The contract did not contain any fixed payment, and no bid was submitted--far less approved--pursuant to relevant county ordinances governing public contracts. Ponte disregarded opportunities to abandon his claims after the County provided him with pertinent legal authority demonstrating that his claims lacked merit."

You don't need to read the remainder of the opinion to figure out where this is going.

Unless, of course, you'd like to see the attorney for Mr. Ponte receive similar critique.  But for that you'll only have to read as far as the first footnote:

"We begin by noting with disapproval the paucity of pertinent record citations throughout Ponte’s opening brief, which contains key passages either devoid of any citations, or containing inadequate citations, placing an unfair burden on this court. This same flaw is apparent in the reply brief."

The Court of Appeal certainly isn't shy here.

Monday, August 14, 2017

People v. Trever P. (Cal. Ct. App. - Aug. 14, 2017)

I just knew that when this opinion mentioned that it involved a 12-year old child babysitting his 4-year old cousin that we'd be talking about something bad.

Admittedly, I didn't know that it'd be this bad.  For example, that we'd be talking about an actual tape recording of a molestation.  Or that it'd be so bad that this is what he trial judge had to say:

“I have to say this tape recording, Exhibit 2, is some of the most sickening evidence I've heard. I have presided over adult jury trials involving murders with gory evidence and sexual abuse cases with horrific testimony from the victims, but actually hearing the acts being committed, as is the case here, and Trever's callous and sadistic treatment of Ralph is very disturbing. He seems to take pleasure out of hurting Ralph, and threatening to leave him and spanking him. [¶] There are numerous instances of Trever telling Ralph to bend over and open his butt, that he was going to stick it in, and for Ralph to keep it in; and to do it just one more time, over and over; or requesting Ralph to 'suck it' and threaten[ing] to leave him alone if he didn't and even threatening to kill him.”

Yeah.  Not good.  Especially when you're listening to this stuff exactly as it happened.

On the intellectual front, however, I will say that the opinion is definitely interesting, and would the underlying dispute would also make for a decent law review article.  The issue is whether a parent can "consent" on behalf of her minor child to secretly record communications with someone else.  Usually you have to get consent of both sides to a communication, or it's a felony.  But in certain circumstances, you only need one party's consent; e.g., when you're trying to get evidence related to extortion, crimes of violence, etc.

But here, neither party to the communication gave consent, or even knew that things were being taped.  Yet most courts, including this one, hold that the parent's consent "on behalf of" the minor child was nonetheless sufficient to constitute "consent" within the exception.

There's nonetheless a huge fight about how far this goes.  What about "consent" on behalf of a 17-year old child (who, again, doesn't know or want the communication to be recorded)?  Or "consent" by a noncustodial parent?  Or "consent" by other types of agents; e.g., a principal granting "consent" for his agent (attorney, employee, etc.) to secretly tape?  Are those valid too?

Not relevant here, since this is an otherwise straightforward "four year old child" type of case.  But just how far does the doctrine of "vicarious consent" go?  (And does it even make sense at the outset, or is it inconsistent with the text of the statute in even its "purest" form?)

Interesting stuff.

Thursday, August 10, 2017

Curci Investments v. Baldwin (Cal. Ct. App. - Aug. 10, 2017)

"Reverse veil piercing".  Super cool.

And allowed in California in an appropriate case.

Including, potentially, this one.

Wednesday, August 09, 2017

People v. Financial Casualty & Surety (Cal. Ct. App. - Aug. 8, 2017)

Two questions about this opinion:

(1) What's the relevant standard of proof?  The opinion doesn't seem to mention it, but I think it's at least relevant, if not critical.  Bail doesn't get forfeited if the defendant's been deported.  Here, the surety introduces evidence that certainly seems to at least suggest that the guy might well have been deported.

The surety convincingly establishes that, after posting bail, the defendant was arrested in Utah on drug offenses.  And, as a condition of being released on probation for these offenses, his booking sheet says "Defendant to be released to Immigration and Customs Enforcement (ICE). [¶] Defendant may be released early for deportation into the custody of Immigration and Customs Enforcement (ICE); or leave the country voluntarily within 10 days of release. [¶] Do not re-enter the country illegally."

Since the guy was released to ICE directly from jail, that strongly suggests that the guy was kicked out of the country, since that's what typically happens.  The surety also introduces some cooberating evidence:  a letter from the Department of Homeland Security that reads:  “This is in response to your letter dated August 5, 2015, in which you seek information about the deportation status of Lesman Orlando Benegas-Cruz. [¶] The subject departed from the U.S. to Honduras on June 18, 2015.”

Well, geeze.  That definitely suggests that, yep, the guy was deported to Honduras, no?

Now, the Court of Appeal correctly notes that this evidence doesn't prove that the guy was actually deported.  The letter says that he "departed" for Honduras (even though it also talks about his "deportation" status), and the probation conditions also leave open the possibility that defendant might be permitted to leave the country voluntarily.

So I agree that I wouldn't bet my life -- or even my house -- on the fact that the defendant was in fact deported.  The evidence doesn't establish that fact with 100% certainty.

But that's where the standard of proof comes in.  At least to me.  My guess is that the relevant standard is proponderence of the evidence.  Or maybe even something less.

(I make this latter point because the opinion cites a case in a different section of the opinion that held that “the test is not whether it has been conclusively demonstrated a defendant had an actual and valid excuse for his nonappearance,” rather “the statute requires the court only have 'reason to believe that sufficient excuse may exist for the failure to appear.'")

The evidence the surety introduced may not prove conclusively that the guy was deported.  But it certainly gives a strong reason to believe that might well have transpired, no?  If the standard of proof is 50.001%, geeze, that evidence might well be enough.  If I had to bet one way or another whether the guy was, in fact, deported, I might well take the "Yes" side of that bet.  The evidence might show at least that it's more likely than not that the guy was kicked out.  Even though, sure, there's at least a chance that the guy voluntarily left.

What about you.  You've got $1000 in free money to bet.  Would you take the "Yes, Deported" side of the bet, or "No, Not Deported" side?

So it seems to me that the standard of proof is pretty darn important.  And that the surety's evidence might also well satisfy whatever the underlying standard is.  Even if, admittedly, it leaves open an alternative hypothesis to deportation.

(2)  A related, but quicker, thought.  Why does this matter anyway?

The opinion cogently cites precedent from the Court of Appeal that says that if you're deported, the surety doesn't lose his bail money, but if you voluntarily skip the country, yep, the money's gone.  I get that rule, and in most circumstances, it makes sense.  You can't just flee to Mexico and get your bail money back.

But, here, we're merely disputing whether someone was "actually" deported to Honduras or whether ICE gave him the option of "voluntarily departing" and never coming back.  The guy was going to be deported if he didn't "voluntarily" leave.  Undisputedly.  And since he's not a citizen, he's not allowed to come back.  Under such circumstances, it's not an actual choice.  The authorities are the ones who are making you leave.  You're not skipping out on bail.  You're being deported.  Either de jure or de facto.

Why does it make a monetary difference which one it is?  (A) It's not your choice. (B) You're not doing it to skip out on bail. (C) Either way you're forced, under official orders, to leave the country and never come back.  (See, e.g., the probation condition:  "Do not re-enter the country illegally.")

"Voluntary" departure in the deportation context doesn't seem to me actually voluntary, nor the type of "skipping the country" that precedent talks about when it mentions skipping bail.  So I'd like to have read a bit more analysis of this issue as well.

'Cause I'm not sure that, even if the evidence was consistent with a "voluntary" departure, that should be treated any different than an actual deportation in this context.

(The fact that, on appeal, the surety introduced additional evidence that may well show that, yeah, the guy was actually deported only strengthens my thought that the result here might well be a forfeiture in unjust circumstances.  I agree with the Court of Appeal that it can't consider this evidence since it wasn't presented below  But if in fact that evidence does indeed show that, yeah, he was indeed given the official boot, rather than voluntarily departed, that's just proof positive in my view that the "Yes he was deported" side of the bet is in fact a pretty good one to have taken, even on the evidence that was introduced below.)

Tuesday, August 08, 2017

DLS Precision Fab v. U.S. ICE (9th Cir. - Aug. 7, 2017)

This opinion amply demonstrates at least one of the reasons why you should (1) hire a good human resources director, and (2) make sure that s/he's in fact doing a good job.  Because if your company start getting letters from the United States and your HR Director "literally stuff[s] the government’s correspondence in a drawer and never respond[s]," you may find yourself on the wrong end of a $300,000+ penalty.

Which is generally not good for your company.

Monday, August 07, 2017

In Re Marriage of Garcia (Cal. Ct. App. - Aug. 4, 2017)

Florencia:  "I've had it.  We've been married for 24 years, 7 months, but we're not making 25.  I'm filing for divorce."

Juan:  "Fine.  But guess what?  We were never actually married."

Florencia:  "What?!  That's absurd."

Trial Court:  "Yep, Juan's right.  You were never actually married.  Divorce petition dismissed."

Florencia:  "Okay, then.  New lawsuit.  I was a putative spouse.  Because I definitely thought I was married to you.  So give me the same relief."

Juan:  "I've got some Latin words for you.  'Res judicata'.  You already lost.  You can't sue me again."

Court of Appeal:  "Not so fast.  This is California.  A 'nullity' action is a different primary right than a 'divorce' action.  So the lawsuit can continue."

That's essentially the dialogue that underlies this opinion.

Thursday, August 03, 2017

People v. Echavarria (Cal. Ct. App. - Aug. 3, 2017)

You usually don't see a first-degree murder conviction reversed for juror misconduct.  But for every rule, there's an exception.

As today's opinion proves.

It's possible that the defendant will get convicted of the same offense (first- rather than second-degree murder) at the retrial.  But maybe not.  It's far from an open-and-shut case regarding premeditation.

Which is why there's prejudice here as well.

Regardless, not really worth shooting the guy over a $1200 debt for stucco repair.

Wednesday, August 02, 2017

People v. Singh (Cal. Ct. App. - Aug. 2, 2017)

There are undoubtedly people who are far more familiar with rap lyrics than I am.  Still, even my fairly low level of knowledge makes me wonder how probative (as opposed to prejudicial) the admission of rap lyrics was in this case.

"His writing, “Put it in your face and melts in your mouth like an M&M,” “two to the gut, watch you shut your eyes slow,” and, “I shoot for fun just to watch niggas shake like they goin’ dumb. Put two in your chest, now you goin’ numb” eerily describes what he did to Montoya—shot him in the face and twice in the gut. A jury could infer from defendant’s lyrics his identity as the shooter and his intent to shoot the victim in a specific manner."

Now, if that's how the defendant in fact shot the guy, yeah, that's pretty darn probative.  (Though somewhat diminished if these lyrics are just isolated snippets from several notebooks of rap lyrics, which seems to be the case here.)

And the Court of Appeal says that these lyrics "eerily describe" exactly what he did.


(1) "Put it in your face and melts in your mouth like an M&M."  In the real world, he first shot the guy in the face, true, but not in the mouth, so that "melts in your mouth" part seems exactly not to describe the crime.  And "put in in your face" seems to me like it's referring to putting the gun in the guy's face, not necessarily shooting him there (since he gets shot with the gun in his mouth).  So I'm not sure this "eerily describes" the crime more than, oh, a thousand other rap lyrics about putting a gun in someone's face.

(2)  "I shoot for fun just to watch niggas shake like they goin’ dumb."  But wait.  That's not what the the guy did.  He just walked up to the guy, someone said "Hey Joe," and shot him in the face.  Didn't hesitate.  Didn't make the guy shake.  Didn't intimidate the guy before shooting.  Just shot.

(3)  “Two to the gut, watch you shut your eyes slow.”  That describes shooting a guy in the gut and watching him slowly die -- a classic screenplay threat (and act).  But that's totally not what the guy did here.  He shot him in the face first, a shot that was -- according to the testimony at trial as well as the Court of Appeal -- “an immediately fatal injury".  So no watching someone slowly die at all.  

And as for even the out-of-context "two in the gut" line, the Court of Appeal says that's precisely what the defendant did.  But after shooting the guy in the face, he actually shot him once in the gut -- "near his belly button" -- and then (a) twice more (not once), (b) elsewhere.  "After Montoya fell to the ground, defendant stood over him and shot him three more times; near his belly button, in his left groin, and in his penis."  So that's once in the gut and twice in the groin, not "twice in the gut".  Since I don't know about you, but I don't call my groin and/or my penis my "gut".  And even if I did, that'd mean three in the gut, not two.

Tuesday, August 01, 2017

Republic of Marshall Islands v. United States (9th Cir. - July 31, 2017)

This morning brings a very good example of a lawsuit with a zero percent probability of success.  Zero.  As anyone with any knowledge of the underlying subject matter -- despite it being allegedly "complex" -- would well know:

"Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (the “Treaty” or the “Non-Proliferation Treaty”) . . . calls on each party to the Treaty “to pursue negotiations in good faith on effective measures” to end the nuclear arms race and accomplish nuclear disarmament.   Armed with Article VI, one of the treaty parties, the Republic of the Marshall Islands, filed suit, asking the federal court to declare the United States in breach of its treaty obligations and to order the United States to engage in good-faith negotiations."

Uh, dude.  To state the facts of the case is pretty much all I need to know in order to tell you how it's going to come out.

But lest you take it from me, here's how the Ninth Circuit summarizes things:

"These claims are nonjusticiable -- Article VI is not directly enforceable in federal court, the Marshall Islands’ asserted injuries are not redressable, and the claims raise nonjusticiable political questions.  At bottom, the suit is doomed because diplomatic negotiations among parties to this Treaty fall quintessentially within the realm of the executive, not the judiciary. Parleying a halt to the nuclear arms race and achieving nuclear disarmament involve decision-making delegated to the political branches. We affirm the district court’s dismissal of the complaint. Asking the federal court to order the United States to negotiate in “good faith” on “effective measures” for nuclear disarmament puts the judiciary in the role of nanny to the executive. Under our system of separation of powers, the federal court cannot give the Marshall Islands the judicial relief it seeks."

And that's even from an author (Judge McKeown) who's probably generally somewhat sympathetic to the plaintiff's cause.

In short, no, you're not going to win this lawsuit.  No chance.  Zero.

Baker v. Italian Maple Holdings (Cal. Ct. App. - July 31, 2017)

Is an arbitration agreement enforceable if a consumer (1) signs it, (2) has a statutory right to rescind her agreement within 30 days of her signature, but (3) dies before the 30 day statutory period expires?

After this opinion, the Court of Appeal is split on the issue.

One opinion, from eight years ago, holds that the agreement isn't binding in such circumstances.  But a different opinion, from now, holds that the agreement is binding in such circumstances.

It's a statutory interpretation case, and revolves around the meaning of what the statute means when it says that "[o]nce signed, such a contract governs all subsequent open-book account transactions for medical services for which the contract was signed until or unless rescinded by written notice within 30 days of signature."  Does that mean that since the contract was never rescinded, it's still valid?  Or does it mean that since the statutory 30-day period never had a chance to expire, it's invalid?

The question is particularly relevant when, as here, the consumer dies allegedly because of the negligence of the party seeking to enforce the arbitration agreement.  To put it a different way:  Can you frustrate the 30-day statutory cooling off period by killing the signator so she can't exercise her right to rescind?

There's a split in the Court of Appeal.  It's an important issue.  It's one that recurs -- particularly (as here) in the nursing home context, where I imagine a nontrivial number of people die within a month of being admitted.  And the latest opinion not only expressly disagrees with the prior opinion, but also garners a dissent.

The California Supreme Court should step in and decide the issue once and for all.  Whether you get to go to court upon your death shouldn't depend on what particular panel you happen to draw.