Wednesday, January 31, 2018

O'Malley v. Hospitality Staffing Solutions (Cal. Ct. App. - Jan. 31, 2018)

Justice Moore begins today's opinion by noting the general rule:

"Ordinarily, a person has no legal duty to come to the aid of another. But if a person does come to the aid of another, and does so without exercising reasonable care, that person may be responsible for any damages caused under a 'negligent undertaking' theory of liability."

There are various statutory exceptions to that rule, there are various issues of fact regarding whether someone has a duty, etc.  This case involves applying all those things to the issue at hand.

Here, a wife checked into a hotel, her husband kept calling her without answer, and he eventually called the hotel and asked 'em to check up on her.  The hotel sent up a maintenance worker who quickly peeked into the dark room and didn't see anything, and hence told the husband that there was no one there.  But the husband later drove to the hotel and found his wife on the floor, where she fell after suffering a brain aneurysm.

Hence the lawsuit.

The trial court granted summary judgment to the defendant on the ground that there was no duty.  The Court of Appeal reverses, holding that since the hotel bothered to check, a duty may well exist.

Okay, fine.  You can see why precedent might so hold.

Just don't be surprised, in the future, if hotels accordingly refuse to help you out when you think that your spouse may have had a heart attack, have collapsed in her room, etc.  "Sorry, we'd love to help out if we could, but if we do, you might sue us.  So we can't help you.  Our general counsel has set a firm policy that we can never help anyone out if there's a worry they might be in danger.  Have a nice day."

That's definitely the world in which I'd like to live.

Tuesday, January 30, 2018

Santa Barbara Channelkeeper v. City of San Buenvaventura (Cal. Ct. App. - Jan. 30, 2018)

I agree with this opinion one thousand percent.  And am so happy it's published.

Santa Barbara Channelkeeper thinks that the City of San Buenaventura is taking too much water from the Ventura River, which is in turn threatening the Southern California steelhead trout.  So it sues.

Great.  That's why we have courts.  To figure these things out.  Based on the limited facts in the opinion, by the way, it seems like Santa Barbara Channelkeeper is right -- that we're basically killing this species by making the river run essentially dry over the summer.  Probably a bad idea.

The City thinks it's got a vested right to take the water, but even if there is a vested right, that's trumped if the use is unreasonable, which killing a species might be.

Regardless, today's appeal isn't about the merits.  It's about procedure.  The City files a cross-complaint against a huge number of other people who also take water from the Ventura River.  Basically saying that if everyone is collectively taking too much, the City shouldn't be the one left holding the bag and the one compelled to reduce its own use -- instead, everyone should participate.

Which sounds exactly right to me.  You figure out how much water you need to leave it, you figure out amongst all the people who take the water who should leave how much in, and then you enter a judgment accordingly.

Perfect.  Efficient, even.

But that's not the way the trial court saw it.  It dismissed the City's cross-complaint, saying that the present suit was just about the City's water usage, not everyone else's.

Thankfully, the Court of Appeal reverses.

I get that the plaintiff might be happy with just an easier suit that's only against one appropriator.  But the lawsuit involves the entire river.  It makes eminent sense to me to bring everyone together in one big lawsuit.  Indeed, to do otherwise seems manifestly unfair.  Everyone should be treated the same (or at least consistently).  And you can only do that if everyone's together and bound.

So I think the Court of Appeal gets this one exactly right.

And that makes me happy.

P.S. - Was I the only one in the universe (or at least Southern California) that didn't know that the City of Ventura's "actual" name was the City of San Buenaventura?!  Just learned that today.  And not even from the opinion -- I had to look it up.

Monday, January 29, 2018

Candelore v. Tinder (Cal. Ct. App. - Jan. 29, 2018)

I'm not a big believer in discrimination based on immutable characteristics.  Shocking, I know.

As a result, I'm a fan of the Unruh Civil Rights Act.  Seems to me that you shouldn't make arbitrary or unjustified distinctions based on stereotypes.  No charging more (or less) based on race, gender, sexual orientation, etc.  Unless there's an actual good reason it.  That resonates with me.

Yet I tend to think that principle is increasingly affirmed more in theory than in fact.  You see legions of cases that attempt to salvage gender-based discrimination, for example (e.g., "Ladies Nights"), by imposing a variety of substantive and procedural obstacles to enforcement.  Or you courts rationalize discrimination on a number of different grounds.

Some of these developments might make sense.  But I have a feeling that underlying the morass of them is a belief that stereotypes (or at least "accurate" stereotypes) are okay.  Or at least not as bad as traditionally thought.

So when I read this afternoon's opinion, I anticipated more of the same.

But was in for a surprise.

The case involves Tinder.  The Court of Appeal cogently explains the service in the first paragraph of its opinion.  Lest anyone have been under a rock for the last decade (or at least not regularly around millennials since then):

"Tinder, Inc. owns and operates the smartphone-based dating application, Tinder. The original app began, and is still offered, as a free online dating service. It presents users with photos of potential dates. The user can swipe right to express approval, or swipe left to express disapproval. In March 2015, Tinder released a premium service called “Tinder Plus,” which allows users to access additional features of the app for a monthly fee."

Now, admittedly, I've never used the thing.  Nor did I know about Tinder Plus.  So there's something in that opening paragraph for everyone.

And I especially didn't know about the pricing structure for Tinder Plus.  Which is indeed interesting:

"Tinder charges consumers who are age 30 and older $19.99 per month for Tinder Plus, while it charges consumers under the age of 30 only $9.99 or $14.99 per month for the Tinder Plus features."

Hmmm.  I would have thought that was exactly the sort of thing that the Unruh Act prohibited.  So did the plaintiff, who sued.

But the trial court disagreed.  "The trial court sustained Tinder’s demurrer without leave to amend, ruling in part that Tinder’s age-based pricing practice did not constitute arbitrary or invidious discrimination because it was reasonably based on market testing showing “younger users” are “more budget constrained” than older users, “and need a lower price to pull the trigger.”"

But the Court of Appeal disagrees.  Here's the scoop.  With a cultural reference at the end.

"But, as discussed below, the Unruh Act provides broad protection against arbitrary age-based price discrimination. No matter what Tinder’s market research may have shown about the younger users’ relative income and willingness to pay for the service, as a group, as compared to the older cohort, some individuals will not fit the mold. Some older consumers will be “more budget constrained” and less willing to pay than some in the younger group. We conclude the discriminatory pricing model, as alleged, violates the Unruh Act and the UCL to the extent it employs an arbitrary, class-based, generalization about older users’ incomes as a basis for charging them more than younger users. Because nothing in the complaint suggests there is a strong public policy that justifies the alleged discriminatory pricing, the trial court erred in sustaining the demurrer. Accordingly, we swipe left, and reverse."

C.J.L.G. v. Sessions (9th Cir. - Jan. 29, 2018)

Judge Callahan concedes that C.J. -- a child -- "is a sympathetic petitioner."  Which sounds right to me.  He's a Honduran kid who "repeatedly spurned the Mara gang’s entreaties to join its ranks despite death threats made against him and his family" and, after the gang threatened him at gunpoint, fled Honduras and came to the United States.

Not someone we're exactly itching to send back to Honduras.

Most people, anyway.

Judge Callahan is somewhat sympathetic to the child, but not at all sympathetic to his legal claim -- which is that he's entitled to be provided an attorney before he's deported back to Honduras.  That, Judge Callahan says, would "upend Congress’ statutory scheme by reading into the Due Process Clause and the INA itself a categorical right to court-appointed counsel at government expense for alien minors."

Ain't going to happen.  As the Ninth Circuit promptly holds.

Judge Owens concurs.  He comes out the same way.  Though his sympathy is perhaps somewhat more substantial than Judge Callahan's.  He says that he concurs "in the majority opinion and its narrow scope."

(Put to one side whether the opinion is really all that "narrow".  He has a point, and he wants to make it.)

Judge Owens characterizes the majority opinion as "hold[ing] that the Due Process Clause does not mandate government-funded counsel for C.J.L.G, an accompanied minor. The opinion does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors. That is a different question that could lead to a different answer."  Then cites several cases that suggest that in that different setting, he'd lean towards so holding.

So there's expressed sympathy here.  At at least an expression of support by one of the members of the panel for a different rule in a different type of case.

None of which helps the minor -- C.J. -- here.  He's getting sent back to the gang, in a country with an absurdly high murder rate.

Or, as Judge Callahan softly puts it:  "We are mindful that our decision means that, absent a reprieve offered by the government, C.J. will likely be returned to a country in turmoil. We sympathize with his personal plight, as C.J. appears to have displayed courage in the face of serious adversity. But while “our hearts are with [C.J.],” the law does not support his requested relief."

Thursday, January 25, 2018

In Re Marriage of Clarke and Akel (Cal. Ct. App. - Jan. 24, 2018)

This opinion did not at all turn out to have the facts I thought it'd have.

The first couple of paragraphs of the opinion are great.  They say exactly what the opinion holds.  (Or at least, in the author's opinion, the most important parts of that holding.)

That holding also seems spot on to me:

"Under Family Code section 1615, subdivision (c)(2), a premarital agreement is unenforceable as to a party who was not represented by counsel and who did not have at least seven calendar days between the date he or she was “first presented” with the agreement and the date it was signed. [Cites] Evidence Code section 622 provides that the facts recited in a written instrument, other than the recital of a consideration, “are conclusively presumed to be true as between the parties thereto[.]”

We conclude that when the evidence shows an unrepresented party to a premarital agreement was not provided with the seven-day period for review required by Family Code section 1615, subdivision (c)(2), the agreement’s recitation that the review period was provided is not binding. In other words, the seven-day review period may not be circumvented by inserting language into a premarital agreement acknowledging that both sides had seven days to review the agreement, when in fact they did not."

Totally makes sense, right?  If the statute says you've got seven days, then you've really got to have seven days.  No joke.  Can't just lie about it or say otherwise in the written agreement.

Glad to hear.  Exactly right.

Once I knew what the holding was, I figured the facts of the case would be pretty straightforward.

Maybe Rich Husband sprung a premarital agreement on Trophy Wife the day before the wedding, but said in the agreement that she in fact had seven days when she obviously didn't.  She signed because, hey, that's the deal, but now wants to (properly) get out of the thing.

Or maybe there's a factual dispute between Husband and Wife over whether one of 'em actually had seven days to review the thing, but the trial court thought it didn't have to resolve that dispute because the agreement itself said there was seven days.

Both of those factual settings would make sense.  I'm sure they happen all the time.

But this one was something I didn't suspect.  And in ways that make the details interesting.

Here, it's indeed the Husband that comes up with the proposed premarital agreement.  And, yeah, he presents it a couple of weeks before the wedding to his future bride.

Not exactly romantic, but okay.  That's what I expected.

But it doesn't seem that Husband's necessarily your classic rich dude who's just taking advantage of someone by making a last-minute deal.  He doesn't use an attorney to write the thing.  He downloads it off of Nolo Press (!).  And it's mostly about who'll own a particular house that husband was going to bring to the marriage, and he just wanted to make clear what the deal was with it.

Nor does he seem to be procedurally trying to hose his future spouse.  He gets an attorney for her.  One who goes over the deal on her behalf.  Meanwhile, Mr. Nolo Press simply represents himself.

And there's back and forth.  Wife's attorney asks for modifications, redlines the deal, etc.  The parties meet, go through a couple of drafts, etc.  All in the weeks before the wedding.  Then they strike and sign a deal that everyone's happy with.  Wife's happy.  Husband's happy.  Seems fair to everyone.


The couple gets married the day after they both sign the agreement.  Mazel tov.

Needless to say, there wouldn't be an opinion if everyone lived happily ever after.  Eventually, the parties separate.

So now we gotta figure out if the prenup can be enforced.

Though here's the thing.  It's the HUSBAND who's trying to get out of the thing.

Which is weird, right?  Since he's the one who wanted it, who drafted it, and who proposed it.

But, yeah.  He's the one who wants to get out.  And he's the one in a position to potentially do so, since he's the only one who was unrepresented (and hence is entitled to the seven days).

And indeed he does.  The Court of Appeal throws the thing out.

Wife's got a lot of decent arguments as to why that's silly.  The principal one being that he proposed the thing.  So why shouldn't he be bound?  Especially since there were more than seven days between his draft and when they actually signed.  So he clearly had time to consider things.  Seems like a huge and unjustified windfall to let him get out of a deal that he proposed.

Nonetheless, you can see why the Court of Appeal comes out the way it does.  Yes, it was "basically" his deal.  But Wife's attorney edited the thing.  Those edits were non-trivial (though hardly huge).  So it's technically a "different" deal.  Since he didn't actually have seven full days to review the ultimate redlined version, the statute wasn't satisfied, and the deal goes down.

Wife tries mightily to say that Husband should at least be bound to those parts of the agreement that the attorney didn't change, but no dice.  The thing's an integrated whole.  Husband's not bound.

Fascinating stuff.

And not the facts I expected when I first began reading the thing.

Wednesday, January 24, 2018

People v. Golden (Cal. Ct. App. - Jan. 24, 2018)

I knew that prisons see a fair (or at least surprising) amount of drug trafficking, as well as trafficking in cell phones, cigarettes, etc.  Contraband.  Tough to keep out.

But until today, I had no idea that mental health institutions that serve Sexually Violent Predators apparently have a similarly widespread problem with the internal distribution of . . . child pornography.


Here's a part of what today's published opinion says about the subject:

"CSH is a maximum-security psychiatric hospital with a patient population of 1,100, between 80 to 85 percent of whom are sexually violent predators. Because CSH is located on the grounds of Pleasant Valley State Prison, a visitor cannot access the hospital unless he or she first passes an inspection by the Department of Corrections and Rehabilitation. . . . Officers conduct random searches of patients and their dormitories for contraband daily to maintain institutional security. However, patients often dispose of items in the trash or in the toilet once they realize officers are conducting a search. A major problem is the sale of child pornography. According to Sergeant Duvall, CSH is 'possibly becoming a distribution hub.' In addition, there have been assaults on (1) those 'coming forward' to report child pornography; and (2) those who possess the child pornography by fellow patients who 'don’t like the persons having materials like that.'”

America:  Where there's demand, there's likely to be supply.

Tuesday, January 23, 2018

In Re Hyundai and Kia Fuel Economy Litigation (9th Cir. - Jan. 23, 2018)

You've definitely got to read the first two dozen pages of today's Ninth Circuit opinion.  Riveting stuff.

Oh, wait.  My bad.  The first 24 pages are so merely entail the caption.  You've got to read the rest of the opinion for the substance.

All 84 single-spaced pages of it.


It's a pretty important case.  If only for you Hyundai and Kia owners out there.  Until today, there used to be a $200 million-plus class action settlement, and owners would each get $500 or so.

No mas.

Judge Nguyen dissents, but gets outvoted by Judges Ikuta and Kleinfeld.  And even though, in theory, the majority says that "maybe" the case could be recertified on remand, Judge Nguyen seems right to me when she says that the skeptical reasoning behind the majority opinion almost certainly rules that out.

Or, I'd add, at a minimum, means the ultimate settlement will be much more favorable.  Because the defendants' position, after today's opinion, is much stronger.  So the class action plaintiffs will likely be inclined to settle for whatever crumbs they can get lest they get poured out.

So I hope you didn't spend your anticipated class action settlement check in advance, Kia and Hyundai owners.

'Cause it's not looking good for you.

Monday, January 22, 2018

U.S. v. Espinoza (9th Cir. - Jan. 22, 2018)

Sometimes the law changes not because the underlying politics change, but rather simply because a group of smart people take a fresh look at things.

Today's opinion by Judge Paez is a good example of that.

There were two prior opinions by the Ninth Circuit.  Both of these cases upheld the exclusion of evidence in a "blind mule" drug importation case that someone other that the defendant allegedly stashed the drugs in the vehicle that was crossing the border.  So the district court here held that these cases similarly meant that the defendant didn't have a right to introduce such evidence here.

Not so fast.

Judge Paez's opinion is devastatingly accurate.  The first case the district court relied upon was a constitutional case arising from state law habeas.  But the present case is federal.  The basic minimum requirements imposed by the Fourteenth Amendment in a state case is often dramatically different than what the federal rules of evidence require.  Spot on.

That said, as Judge Paez forthrightly (and repeatedly) admits, the reasoning behind the second case is "less clear".  That one was a case from Guam.  The Ninth Circuit in that opinion seemed to be using the same sort of constitutional test applied in the first case.  But maybe that's because at issue was something akin to state law (Guam), maybe because the issue arose under the Guam Rules of Criminal Procedure (which are, admittedly, akin to the Federal Rules), or maybe just because the prior panel was confused.

But today's panel essentially says:  Whatever.  The prior panel applied a test that didn't follow from the prior case.  And it involved Guam.  We're not going to make the same mistake here.  And mistake it surely was.  You can't import a constitutional standard into an actual rule.  The two are different.

So it reverses and remands.  Because under the relevant federal rule, the district court got it wrong.

This is not a case in which the prior panels were conservative and now we have liberals who simply view the universe differently.  The panels in all of these cases were stacked with lefties (or, in some cases, moderates).

It's just that a prior panel thought the case was an easy one, since it seemed like there was a case that was on point.  One that, upon examination, actually wasn't.

And the subsequent panel doesn't make the same mistake.  Instead, it follow the usual rule established in regular-old federal cases that says that evidence like this is admissible.

Great catch.

Friday, January 19, 2018

Estate of Kerkorian (Cal. Ct. App. - Jan. 19, 2018)

You see in today's opinion a story of what is unquestionably true love:

"Two days before the wedding, [Kirk] Kerkorian gave . . . (Mandekic) $10 million with written instructions to give the money to petitioner upon their marriage “as a transfer from [Kerkorian] to [petitioner] outside of [Kerkorian’s] estate and . . . in place of any transfer to [petitioner] that [Kerkorian] might make upon [his] death.” The day before the wedding, petitioner signed a “Waiver of Marital Rights” (the waiver) in which she relinquished any right to receive assets of Kerkorian’s estate through intestate succession, under Kerkorian’s will, or as an omitted spouse pursuant to statute. Mandekic then transferred $10 million to petitioner as directed. . . .

Petitioner and Kerkorian separated roughly two months later. Kerkorian died just over a year thereafter, in June 2015. His will was admitted to probate, and Mandekic was qualified to serve as executor of the estate. The July 2013 will is not part of the record on appeal, but it is undisputed the will (1) does not mention petitioner, (2) provides approximately $40 million in specific bequests to several individuals, including Mandekic (whose bequest has already been distributed), and (3) gives the remainder of Kerkorian’s estate, valued at approximately $2 billion, to unidentified charitable organizations to be selected by a committee appointed in the will."

Needless to say, Kerkorian's former wife -- Una Davis -- now seeks a huge chunk of the $2 billion as an omitted spouse.

The $10 million payment right after the wedding.  The prenup signed the day before.  The separation months after the marriage.  A demand for huge amounts after the former spouse dies.

Modern romance.

Thursday, January 18, 2018

Wishnev v. Northwestern Mut. Life Ins. Co. (9th Cir. - Jan. 18, 2018)

Am I wrong, or does it seem like the Ninth Circuit has been certifying more and more questions to state supreme courts over the past half-dozen years or so?

The Ninth Circuit certifies today yet another question to the California Supreme Court.  This one is about usury and permissible interest rates (in particular, compound interest).

I assume the California Supreme Court will take the thing and decide it.  Though I wonder what the informal "cap" would be on how much work a state supreme court would do for the Ninth Circuit before it stopped doing stuff for 'em.  Five cases a year?  Ten?

If I was more rigorous, I'd actually run the numbers and see if my intuition is correct that there's been a slight uptick in certification in the Ninth Circuit.

But I'm sick.  And lazy.  At least today.

So I'll just speculate.

Ah, the joys of academia.

Wednesday, January 17, 2018

ESP LERP v. Gascon (9th Cir. - Jan. 17, 2018)

When the name of the plaintiff on the caption is "Erotic Service Provider Legal Education and Research Project," you're pretty much required to read the underlying opinion, right?

Of course you are.  If only to figure out what the heck that organization does.

Here, it's a constitutional challenge to California's law against prostitution.  Plaintiffs say that have a constitutional right to do what they want (sexually, at least) with their bodies -- even for money.  The district court dismissed on the pleadings.

Not surprisingly, the Ninth Circuit unanimously affirms.

This was a lost cause from the beginning.  Sure, Lawrence opened up a lot of things to potential challenge on the sex front.  But prostitution was carved out even in that opinion.  So there was little doubt -- notwithstanding the substantial amici involvement in the case -- where this one was going to end up.

Which is not to say that plaintiffs will never prevail.  Who knows what the next decade or so (or decades) will bring?  Few would have predicted, for example, that gay marriage would end up where it is now so quickly.

But at least for now, this is an idea whose time has not yet come.  At least in the judiciary.

And it isn't even especially close.

Tuesday, January 16, 2018

Galiea LLC v. AGCS Marine Ins. Co. (9th Cir. - Jan. 16, 2018)

I've never been a scholar of Plato.  I've read the guy, sure.  But not a ton.  Nonetheless, I recognize the guy's a stud.  Name all the people you know from 2000 years ago.  Yeah.  Thought so.  When you're in a group of a dozen or so people, that's a pretty significant accomplishment.

So when the guy speaks, I listen.

Judge Berzon begins her opinion today with a quote from the guy.  And it's surely an appropriate quote for the context -- an insurance policy that covered a yacht that wrecked in Panama.  She says:

"“The sea, although an agreeable, is a dangerous companion,” wrote Plato more than two millennia ago."

Cool.  Never read that one before.  Awesome.

But I have a question.  One that may admittedly demonstrate my ignorance.  Lest that should ever stop me.

Doesn't that middle clause have to have a noun in it?

It's not that Judge Berzon gets the quote wrong.  Everything I've seen recites the passage the same way.

But "agreeable" is an adjective, right?

So I could see the sentence reading:  "The sea, although agreeable, is a dangerous companion."  Or, "The sea, though an agreeable one, is a dangerous companion."  Or even "The sea is an agreeable, although dangerous, companion."  Those all make sense to me.

But "The sea, although an agreeable, is a dangerous companion" just strikes me as sounding strange. I'm trying but failing to come up with an analogy; a different sentence that describes an X as being "an [adjective]" in a subordinate clause followed by an adjective/noun combination.  I'm sure that one probably exists; I just can't come up with one.  And it sounds weird.

None of this, of course, is Plato's fault.  He wrote in Greek.  I'm sure it makes total sense in the original.

The translation just strikes me as a bit off.  Or at least unusual.  Maybe that's the point?

Anyway, you can read the whole opinion if you'd like.  Though I'll warn you at the outset that spending some time pondering Plato may be slightly more enthralling than deciding whether arbitration provisions in maritime insurance policies are enforceable despite law in the forum state that precludes its application pursuant to the McCarran-Ferguson Act, 15 U.S.C. § 1012 (which shields state insurance laws from federal preemption) and the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1–16 (which provides for enforcement of arbitration provisions in maritime contracts).

But, hey, that's the dispositive issue here.  So that's what the court decides.

Friday, January 12, 2018

Cook v. Harding (9th Cir. - Jan. 12, 2018)

Today's Ninth Circuit opinion is a dream read for civil procedure/federal courts scholars.  It's all about Younger abstention and issue preclusion.  And, as an added bonus, these issues arise in the context of a constitutional challenge to California Family Code Section 7962, which codified the preexisting California cases that found gestational surrogacy contracts enforceable.  Fascinating.

Though I readily concede that "fascinating" may be an overstatement for those less enthralled by federal procedural minutia.

Thursday, January 11, 2018

Murray Dental Corp. v. Dentsply Int'l (Cal. Ct. App. - Jan. 10, 2018)

The next time someone tells you that class actions are unfair because they're judicial blackmail, too risky for defendants to take to trial, coerce settlement even when the action is meritless, impossible to try, etc. etc., have them read this opinion.  (And, yes, Judges Easterbrook, Friendly, and Posner, I'm talking, inter alia, to you.)

It's a case that was filed in 2004, and has been up and down in the Court of Appeal since then.  It's a class action against a particular (very expensive) dental machine, which the plaintiffs say isn't up to snuff because defendants market it as good for "[p]eriodontal debridement for all types of periodontal diseases" (e.g., oral surgery) but in fact doesn't work for that since it accumulates biofilm and hence can't deliver the required sterile water.

The case goes on forever.  Thirteen years.  Gets certified and everything (though even that requires a trip in the Court of Appeal).  But never settles.  Actually goes to trial; a month-long one, even.

One in which the defendants prevail.  And the Court of Appeal affirms.

A definite bummer for the plaintiff class and -- especially -- their attorneys, to be sure.  All that work (and expense) for literally less than nothing.  Plus a cost award (e.g., insult to injury) in the final lines of the Court of Appeal's opinion.  Ouch.

But proof positive that cases can be tried.  And lost.  Even class actions that might facially seem non-trivially good ones.

Wednesday, January 10, 2018

U.S. v. Hullen (9th Cir. - Jan. 10, 2018)

Andrew Hulen failed to register as a sex offender, so he was sentenced to a year in federal prison.  He did his time and got out.  After he was out, he had a five year term of supervised release, and was required to undergo sex offender treatment.  Which he did.

Two months into that treatment, however, he volunteered to his treatment provider that "he was not doing all he could to progress in treatment."  Clearly, he felt bad about that.  "Hulen’s provider told him to write down everything he had done in violation of his treatment program, which he did."  The resulting list was pretty long; he was sexting, having contact with (presumably adult) women, going to bars, etc.  Things he definitely shouldn't be doing.

So, on the basis of Hulen's forthright admissions, his provider promptly terminated Hulen and tturned over his list to his probation officer.  Who in turn revoked Hulen's supervised release, and Hulen was forced to spend another six months in prison.

Hulen says that this violated his Fifth Amendment right to remain silent, because he was required to be truthful in his treatment program, and he was, and that's precisely what got him in trouble.  But the Ninth Circuit holds that the Fifth Amendment doesn't apply to revocations of supervised release.  So there.

Okay.  That's the way we view things, apparently.  It is what it is.

But I will say this.  If that's the law, and I'm Hulen, I'm definitely going to start lying to my treatment provider (e.g., my doctor).  Every.  Single.  Day.  I'm not going to feel bad about the stuff I'm doing; or, at least, I'm not going to tell him about that stuff in an attempt to get better.  Because, apparently, rather than try to help me, he's just going to get me thrown back in prison.  And, after today, he can clearly do that, and I'm utterly without recourse.

And if I'm anyone advising Hulen (e.g., his lawyer), I'm going to make darn sure to tell him that this is the law.  Because I don't want him thinking, even for a second, that he can be honest with the guy who's trying to make him better. 

Friends of Animals v. U.S. Fish & Wildlife Svc. (9th Cir. - Jan. 10, 2018)

What Judge O'Scannlain says in today's opinion seems right to me.  The U.S. Fish & Wildlife Service decided that in order to protect one very critically threatened species -- the northern spotted owl -- it might make sense to reduce the population of another (fairly common) species, the barred owl.  Barred owls, as it turns out, are fairly aggressive, and have migrated from their usual range in the eastern United States to compete with northern spotted owls out here in the West.  To the substantial detriment of the latter.

Or so it seems.  The U.S. Fish & Wildlife Service decided that it'd go to particular areas and whack some barred owls to see if that helped out the northern spotted owls there.  Which, my sense is, it probably will:  "Barred owls’ diets can overlap with spotted owls’ by as much as 76%, and the more aggressive barred owl may displace spotted owls and may even physically attack them."

Judge O'Scannlain says there's nothing illegal about that.  Which seems right to me.

The only thing that sort of miffed me about the opinion was the language.  Throughout the opinion -- a couple dozen times or so -- the Ninth Circuit says that the issue is whether the U.S. Fish & Wildlife Service is permitted to "take" the barred owls.  Only in a footnote (or in isolated quotes) does the opinion say what we all know this really means.  As the footnote explains:  "“To ‘take,’ when applied to wild animals, means to reduce those animals, by killing or capturing, to human control.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 717 (1995). As the Service acknowledges, the “vast majority of take” at issue in this case consists of “intentional, lethal take of barred owls.”"

Look, I know the relevant statutes say "take", and it's nice that Judge O'Scannlain drops a note to recognize that he's aware what this really means.  But whereas Congress may prefer euphemisms, I prefer letting the reader know straight out what we're talking about.  Can we kill thousands of one type of owl to potentially help out another?

I think the answer is yes.  But I also wouldn't shy away from using the more meaningful word.

Because that's what's at stake.

Monday, January 08, 2018

People v. Arter (App. Div. Yolo - Jan. 5, 2018)

It's a minor point, to be sure.  And I don't at all expect perfection from opinions by the Appellate Division of the Superior Court -- in this case, from Yolo County.

But, as a general matter, there's no reason to include stuff in a published opinion that's unnecessary as well as routine.  For example, the following three paragraphs of the opinion:

"Defendant filed an opening brief.

The People filed a respondent’s brief.

Defendant filed a reply brief."

Okay, that's great.  I'm glad everyone filed briefs.  But we probably expected as much.  No need to kill trees (or pixels) pointing it out.

There's some minor other stuff as well.  Some bluebooking errors; for example, on page 7, the citation to "(Birchfield v. North Dakota ____U.S._____, 136 S. Ct. 2160.)" needs a year.  And there's a crazy blank box of some sort on page 8; not sure what that's about.

But, again, nobody's perfect.  I appreciate the opinion.  Boating while intoxicated is a problem.  Glad to see the panel make the extra effort involved to publish the opinion.

POSTSCRIPT - A couple hours after my post, they reposted the opinion to the "correct" version -- one that (thankfully) gets rid of that annoying box.  Still doesn't have a year for Birchfield though.

Thursday, January 04, 2018

People v. Tua (Cal. Ct. App. - Jan. 4, 2018)

The first paragraph of today's opinion begins by saying:

"A jury convicted Roland Isaac Seau of the crimes of murder in the first degree in the death of Louiegie Bermas with the personal use of a deadly weapon; the willful, deliberate, and premeditated attempted murder of Randy Lozano; assault with a deadly weapon on Lozano with the personal use of a knife and personal infliction of great bodily injury; and dissuading a witness, Vanessa Rivera. The jury found that each crime was committed for the benefit of a criminal street gang. In a bifurcated proceeding, Seau admitted two prison priors, a strike prior, and a serious felony prior." (citations omitted)

Well, now, that's a pretty solid batch of charges.  Indeed, you can't get much more solid than that.  I would expect some heavy, heavy time.

Which is exactly what Mr. Seau receives:  102 years to life.

His friend, Mr. Tua, gets sentenced to 75 years to life.  But, again, these are darn serious convictions.  Probably not helped by the fact that Mr. Tua has a tattoo on the left side of his neck that says "Fuck a Snitch."

The crimes here also reflect the somewhat random -- and harsh -- nature of life on the relevant streets.  The person who's stabbed and almost dies is a guy who was a gang member from Fallbrook who made the mistake of moving to Oceanside.  Even though he was friends with everyone there, and didn't seem to make enemies with anyone, he still randomly suffers his fate.

It's even worse (obviously) for the guy who was killed.  As far as I can tell, he didn't do anything.  At all.  He's not even in a gang.  He was just a guy with a slight build who was friends with the other guy.  A fact that got him killed.

What a harsh world in which to live.

Wednesday, January 03, 2018

Arave v. Merrill Lynch (Cal. Ct. App. - Jan. 2, 2018)

One of the annyong things about practicing in the Ninth Circuit is its issuance of short, unpublished memorandum dispositions.  I understand why they do them; there are too many cases to resolve all of them in lengthy published opinions.  So you need to short circuit some -- indeed, perhaps most -- of them.

Still, if you're a lawyer for one of the sides, and you've spent hundreds of hours pouring out your detailed arguments in 50-page appellate briefs, it's incredibly distressing to get back a two- or three-page opinion back that engages with none of these arguments and simply gives you a conclusion.  I found that prospect distressing even when I was (long ago) clerking on the Ninth Circuit, and for that reason always wanted to go through the extra (albeit unnecessary) effort of drafting comprehensive opinions even if they were going to be unpublished.  I find the prospect even more distressing now that I'm on the receiving end of those opinions.  Again:  I understand why they're done.  But they're still no fun.

Which is, in part, why I really appreciated the first published opinion in 2018 from the California Court of Appeal.  It's an incredibly fact-intensive opinion about a particular discrimination case -- a case in which there was a five-week trial.  And the Court of Appeal goes through every argument that's raised in excruciating detail.  Justice Slough's opinion is 94 (!) pages.  It may not resolve the issues in the manner preferred by the losing party.  But the justices undeniably took their jobs very seriously, and went through their assigned tasks point-by-point.  In detail.

You can't argue with that.

It's a nice start to a new year to see something that's so obviously diligent.  Gives one hope.

Tuesday, January 02, 2018

People v. Shaw (Cal. Ct. App. - Dec. 7, 2017)

The holidays are over.  Sorta.  There's nothing published from any appellate court in California yet for 2018.  So they're still on a break.  (Though I'm confident they're working away.)

So let's take a break and mention something noteworthy from December.  This opinion contains two things I hadn't seen before.  Or at least don't recall seeing.

First, the defendant was convicted of possession of burglary tools.  That's not strange.  But the burglary tool that he was convicted of possessing was a foil-lined bag.  Apparently, foil-lined bags are used to shoplift material from stores (here, to steal jeans); that way, the store's sensor doesn't go off when you take the stuff out of the store.

Didn't know that.

Second, the first line of the opinion reads:  "Defendant James Shaw used a foil-lined bag to shoplift several pairs of jeans from a San Francisco department store."  But the caption is "People v. Linda Shaw."  No, Linda is not his wife.  He's transgender.  Hence the divergence.

Don't recall seeing that before either.