Thursday, March 29, 2018

In Re Conservatorship of P.D. (Cal. Ct. App. - March 29, 2018)

"P.D. suffers from schizophrenia. He was arrested for violating a restraining order that protects his family. The court found him incompetent to stand trial. It committed him to Sylmar Health and Rehabilitation Center for mental health treatment to restore his competency. After the criminal charges were dismissed, Public Guardian filed a petition for a conservatorship on the ground that P.D. is gravely disabled as a result of his mental disorder.

Murray Weiss, M.D., testified that P.D. was diagnosed with a mental disorder 10 years earlier, has delusions, and requires medication to control his symptoms. When not taking his medication, P.D. becomes angry, aggressive, and “impulse disordered.” Dr. Weiss said that P.D. does not accept his diagnosis and believes his medications are “poison drugs.”

Dr. Weiss opined that P.D. is unable to provide for his basic needs of food, clothing, and shelter as a result of his mental disorder. Without a conservatorship, P.D. will stop taking his medication and be “homeless and hungry and living from day-to-day and probably arrested for violating the restraining order when he goes back to his family residence.”

P.D. testified that he does not suffer from a mental disorder and does not need to take medication. He said that if released, he will return to his family or seek help from unnamed friends, none of whom he has contacted to discuss his plans. He denied the existence of an active restraining order which prevents him from contacting his wife and which formed the basis of his prior arrest."

You can probably figure out the rest.  Suffice it to say, P.D. remains in the hospital.  As he probably will for a long, long time.

Wednesday, March 28, 2018

Kater v. Churchill Downs Inc. (9th Cir. - March 28, 2018)

Today's Ninth Circuit opinion may turn a lot of things into illegal gambling -- at least under Washington state law.

Judge Smith's opinion holds that the computer application "Big Fish Casino" entails illegal gambling because you get an initial purchase of "chips" but then, if you run out of chips, have to buy more.  He says that means that you're "gambling" under Washington law because the chips are "things of value" -- i.e., have value because they let you keep playing the game.

Importantly, the panel holds that this is gambling not because some people sell these chips on a secondary market (e.g., the chips have "actual" cash value).  The Ninth Circuit says, in a footnote, that this argument doesn't work, as the terms of service preclude such secondary sales.

It's instead the fact that these chips can be used to obtain additional game play that makes them items of value.  Hence it's gambling.  Hence a user can get back all the money s/he spent on the game.

Okay.  I can see why the Ninth Circuit's so inclined.  Particularly with respect to a casino game.

But it seems to me that today's opinion makes a ton of computer games illegal.  To take but one example, my mother likes to play "Candy Crush" -- a very popular game.  You only get a certain number of "lives" per hour.  Then you've got to wait a while until you get new lives.  But you can defeat a level and then you won't lose a life.  So you can "win" at this "gambling game" and get a "life" that has "value".  And you can purchase new lives as well.

Under today's opinion, that seems to clearly entail illegal gambling under Washington law.  As would a plethora of other applications that limit your game play via similar measures; lives, chips, power, whatever.  A huge volume of games.

I'm sure my mother would be surprised to learn that she's illegally gambling almost every day.  This opinion seems pretty darn broad.

Even though the users of Big Fish Casino -- and a plethora of other games -- may well be excited to learn that they can now probably get all their money back.

At least in Washington.  As well as in any other state with a similarly-worded statute.

Tuesday, March 27, 2018

Elhouty v. Lincoln Benefit Life Co. (9th Cir. - March 27, 2018)

You can see why the Ninth Circuit comes out this way.  It's a litigation over a $2 million life insurance policy.  The panel says that such a dispute meets the amount in controversy requirement for federal diversity jurisdiction because $2 million is greater than $75,000.

Okay.  That's a nice, simple, bright-line rule.  In litigation about an insurance policy, the amount in controversy is the face value of the policy.  That's the test.  As Judge Kleinfeld puts it, "clarity and predictability are more valuable than whatever theoretical precision some more subtle measure would provide."

Judge Kleinfeld's rule would clearly be the right one if the litigation was about who owns the policy proceeds of a $2 million policy upon, say, the policyholder's death.  But that's not this case.  Rather, here, the policyholder is alive, and merely wants the right to continue to pay the policy premium -- which is around $30,000 to $50,000 -- to keep his $2 million policy.  In other words, he only gets $2 million if he (1) wins, and (2) dies.  Otherwise he's just flushed tens of thousands of dollars down the toilet.  Recovery of $2 million is speculative.  To put it another way, the policy that he wants to obtain is indisputably not worth $2 million.  No one would pay $2 million for it.  It's instead worth less.  So it seems strange to value the dispute over this piece of property as worth $2 million.

And Judge Kleinfeld's (admittedly straightforward) rule seems to create problems in other realms as well.  Suppose that I have a $2 lottery ticket for next month's lottery (the top prize of which is $40 million), some guy says its his ticket and not mine, and he sues me in federal court for the ticket.  The ticket's worth only $2, so you'd think that the amount in controversy requirement wouldn't be satisfied and we'd have to be in state court.  But under Judge Kleinfeld's rule, there'd be federal jurisdiction because the amount in controversy would be $40 million -- the "face value" of the lottery ticket (i.e., how much the holder would win if the ticket "hit").  There's no substantive difference between in this regard between insurance policies and lottery tickets.  They both pay out only on the occurrence of specific future (uncertain) events.  So they'd both have the same rule.  Ditto for other similar things; e.g., a bet for $2 on a 100,000-1 longshot to win the 2019 NCAA Basketball Tournament.  All those penny-ante disputes get into federal court as well.  Just like the $2 million insurance policy I bought (hypothetically) for $1 on my oldest daughter potentially getting hit by the Chinese satellite that's about to reenter the atmosphere.  Welcome to federal court.

So I agree that the Ninth Circuit's rule is a simple one to apply.  But it's also one that does a fair piece of mischief.

Judge Bencivengo (sitting by designation from the Southern District of California) concurs in the result but doesn't agree with the panel's test.  I'm sympathetic to her position.  But the problem with her view is that she doesn't articulate any alternative test.  She says that (1) the panel's test is the wrong one (which I understand), but (2) that she nonetheless concurs in the result because she too believes that subject matter jurisdiction exists.  But she doesn't say why for No. 2.  What's the test she's using?  Seems like that's important.  Particularly if you think the panel's test is the wrong one.

The obvious alternative test, at least to me, would rely on market value.  What's the market value of a speculative $2 million insurance policy (or $2 lottery ticket)?  Whatever a willing buyer and seller of such an item would agree upon.  Sure, that's sometimes unclear.  But no less clear with things like insurance policies than, say, a used 2011 Porche 911.  Maybe it's worth $71,000, maybe it's worth $78,000.  We take evidence and make a factual finding.  Real life's messy.  But at least it's real life.  Not some made-up figure that only exists in the relatively unlikely event that a dude dies, a team wins, a satellite crashes, or a lottery ticket hits.

Greenfield v. Mandalay Shores Community Ass'n (Cal. Ct. App. - March 27, 2018)

I'd have thought that an homeowner's association could, if it so chose, prohibit the short-term rental of condos (e.g., via Airbnb) without having to get a coastal development permit from the Coastal Commission.

I'd have been wrong.

Because stopping short-term rentals diminishes the number of people who can easily enjoy the beach, an HOA doesn't have that power.

Good to know.

Friday, March 23, 2018

U.S. v. Kootswatewa (9th Cir. - March 23, 2018)

Usually in child molestation cases you get a fairly fact-specific recitation of the underlying offense.  Especially if, as in today's opinion, (1) the legal dispute revolves at least in part around the facts, and (2) the panel's going to end up affirming the conviction.

So it's not surprising that we learn factual details in the opinion about how the defendant, Theodore Kootswatewa, took (or, at the prosecutor said at trial, "lured") an 11-year old girl into a trailer on the Hopi Reservation in Arizona and molested her.

What was somewhat unusual, however, is that the opinion nowhere reveals the defendant's sentence.  Admittedly, there's no challenge to it on appeal.  But usually they put that in.  Similarly, we learn almost nothing from the opinion about the defendant.  Again:  not necessary to the result, but fairly unusual.

And I cared.  So I looked it up.  A task performed fairly easily thanks to Mr. Google and the unusual name of the defendant.

Who, it turns out, as a (then-) 65-year old man.  Who was sentenced to 40 years in prison.  A sentence that perhaps itself not much of a surprise given the nature of the offense and the fact that Mr. Kootswatewa had allegedly previously twice been convicted of sexual contact with a minor.

Thursday, March 22, 2018

Eng v. Brown (Cal. Ct. App. - March 22, 2018)

Complicated civil business disputes are a huge hassle to actually take to trial.  And this one was an even bigger mess than usual.  Check it out.

It's about the ownership of the Tin Fish restaurant in San Diego.  Which is right by the ballpark.  To summarize the underlying dispute, it appears that the minority shareholder thought that the majority owners were totally diverting profits from the restaurant to themselves.  Hence the lawsuit.

But, unfortunately, the thing was a disaster.  No one could really figure out what the right legal theory (or jury instructions) should be.  So ultimately the defendants prevail at trial, and the Court of Appeal affirms.

Seems to me that this was -- or at least should have been -- a shareholder derivative suit.  But what do I know.

Wednesday, March 21, 2018

Eleanor Licensing LLC v. Classic Recreations LLC (Cal. Ct. App. - March 12, 2017)

This makes two.  Apparently the Court of Appeal is going to publish an opinion every single day that involves litigation over a classic automobile.

"A 2000 remake of Gone in 60 Seconds . . . starred Nicolas Cage and Angelina Jolie. . . . The 2000 motion picture featured a customized 1967 Fastback Ford Mustang, which was also named “Eleanor.” The vehicle was sometimes (erroneously) referred to in the film as a 1967 Shelby GT-500. In July 2007 Hollywood Pictures/Disney executed a quitclaim to confirm that Halicki retained the merchandising rights to “Gone in 60 Seconds” and “Eleanor.” . . . . As of November 1, 2017, Eleanor Licensing entered a license agreement with T&D Motor and Classic Recreations granting T&D Motor and Classic Recreations the right to use intellectual property rights, trademarks and copyrightable material relating to “Gone in 60 Seconds” and “Eleanor” to manufacture and sell 300 restored 1971, 1972 and 1973 Fastback Ford Mustangs fitted and detailed to replicate in appearance the 1974 Eleanor and 1,000 restored 1967 and 1968 Fastback Ford Mustangs fitted and detailed to replicate in appearance the 2000 Eleanor. . . .

The Number 1 unit of the 2000 Eleanor replica described in the licensing agreement (Eleanor No. 1 or the sample car) was constructed in Yukon, Oklahoma, Classic’s place of business, and moved from there to Halicki’s residence in February 2008.3 Apparently neither license plates nor title documents were delivered with the vehicle. On September 16, 2009 Michael Leone, a consultant working with Halicki, emailed Jason Engel to “remind you to please find and send Denice’s Eleanor title with her license plate.” When the license plate, but not the title document, was sent, Leone again emailed Jason Engel, noting “Denice’s title to Eleanor . . . wasn’t in the fedex [sic] with Eleanor’s License plate (tag). What happened? Please check into this.” Jason Engel responded, “Mike it should have been. I’ll find it and send it out.”

Needless to say, things did not work out.  Hence the lawsuit.  Over trademarks, etc. etc.

The trial court issues an opinion, and the Court of Appeal modifies it a bit.  All of which enable me to include yet another picture of a classic (and expensive) vehicle.  The 1967 Fastback Ford Mustang from the movie.  A car that apparently recently sold for a cool million dollars:


Tuesday, March 20, 2018

Lawrence v. Superior Court (Cal. Ct. App. - March 20, 2018)

Today's opinion decides who should possess a million-dollar car while the parties fight over whether it's stolen (probably not) or whether one of two different people legally own it.

Brandon Lawrence says he validly bought the 1947 Cisitalia from a Japanese company who owned it.  But a Japanese citizen, Kiyoshi Takihana, says that the Japanese company stole the vehicle from him in the first place (or, perhaps more accurately, failed to pay for it after he let 'em have it).

So the California Highway Patrol steps in, seizes the vehicle, and is keeping it in a secret location until the parties sort it out.

No good, says the Court of Appeal.  Lawrence has the right of possession in the meantime.  Give him the car and let the civil courts decide who actually owns it.

In the old days, any fight about a million-dollar car would likely have taken place in the Superior Court for Los Angeles County.  It's a testament to contemporary cultural and financial changes that today's opinion comes out of the Superior Court for San Mateo County.

Monday, March 19, 2018

Sali v. Corona Regional Medical Center (9th Cir. - March 19, 2018)

Most petty discovery disputes don't generate published opinions by the Ninth Circuit.  If only because most of the resulting orders are interlocutory and eventually go away before judgment is entered.

Yet here we are.  A routine discovery fight about when an expert deposition should take place.  A type of fight that many of us have engaged in at some point -- or at many points -- during our legal careers.

The defendants want (and notice and issue a subpoena for) the deposition for March 30th, but the parties are fighting via e-mail about who should pay the expert's fees, so plaintiff's counsel and the expert don't show up.  As a result, the next day, defendants say they're going to move ex parte for sanctions and for an order compelling the deposition to take place.

The parties then meet and confer, as required by the local rules.  Defendants finally agree to pay the expert's fees.  But the defendants want the deposition on April 9 (having failed to get one on March 30).  Whereas counsel for plaintiffs says he's on vacation then.  Plaintiff nonetheless says the expert would be available on April 13, as long as there's enough advance notice to set it up.

So the ex parte goes forward.  Remember:  the fight is about whether the deposition would take place on April 9 or (maybe) April 13.  You can imagine how thrilled the magistrate judge must have been to hear that ex parte.

Perhaps not surprising, the magistrate judge denies the ex parte request for an April 9 deposition.  But his order -- dated April 7 -- says that "given plaintiffs’ offer to make Falkenhagen [the expert] available for deposition immediately after their attorney’s vacation," the order concluded by saying: “Plaintiffs are, however, instructed to produce Falkenhagen for deposition on April 13.”

Defendants then subpoena the expert for that date.  And, yet again, the expert and plaintiff's counsel don't show up.  At which point defendants again move for sanctions; this time, for the violation of an express court order.  And the magistrate judge says, yep, I meant what I said, and imposes sanctions of $15,112.  Which plaintiff's counsel promptly refuses to pay, resulting in the entry of a judgment of contempt.

Here's the thing, though.  It's one thing to violate a court order.  That's bold enough.  It's another thing to have a pending ex parte application against you, to go on vacation anyway, and -- and here's what strikes me as the weirdest part of the whole story -- not even check your mail to see what the ex parte order says while you're on vacation.  Yet all of that is what plaintiff's counsel seems to have done.  (Or, as the Ninth Circuit put it, "There’s no evidence that plaintiffs made any effort to secure Falkenhagen’s attendance at the deposition, after counsel affirmatively represented to the court and opposing counsel that Falkenhagen would be available for deposition on April 13. To the contrary, plaintiffs’ counsel went on vacation for a week knowing there was a pending ex parte application to compel the deposition but making no provision for responding to the court’s ruling. Counsel didn’t even read the order until after the time for the deposition had passed.")

All of that is why, in part, the Ninth Circuit affirms the sanction order.  As well as why, below, the district court refused to certify the class.  ("In its order denying class certification, the district court cited this incident as an example of plaintiffs’ counsel’s “lax approach” to prosecuting the action. The court found that plaintiffs’ counsel wasn’t adequate to represent the proposed class.")

Judge Nguyen's opinion on all this stuff is pretty darn good.  A very good explication of why and when you subpoena an nonparty and how all those rules apply to party-affiliated witnesses such as retained experts.  Well done.

Whereas plaintiff's counsel's strategic decisions could perhaps have used a bit more thought.

Friday, March 16, 2018

People v. Aguirre (Cal. Ct. App. - March 16, 2018)

It's bad enough when you're paying for something with a counterfeit $100 bill.  It's even worse when you've got a total of $1,310 in counterfeit currency in your purse at the same time.  And if you do all that when you're on probation, and hence subject to a search condition, wow, that's incredibly unwise.

But when you do all this and you have some methamphetamine and a glass pipe in that same purse, well, at that point, I don't know what advise I can give you.

The defendant here, Beatrice Aguirre, actually gets an amazing deal; she gets to plead guilty to only a single count of forgery for all of the above.  Plus the deal says that she gets to withdraw the plea if the judge sentences her to anything except probation.  Not bad.  Especially for someone with two prior prison terms!

Though then Ms. Aguirre -- again, unwisely -- skips out on her sentencing hearing.  So the deal gets vacated, a bench warrant is issued, she's eventually caught, and ultimately gets sentenced to a couple of years in the pokey.

Plus her current Prop. 47 motion gets denied.

A series of unfortunate events for the unlucky -- and unwise -- Ms. Aguirre.

Wednesday, March 14, 2018

Ventura Content v. Motherless (9th Cir. - March 14, 2018)

Here's a great opinion that gives insight into how most low-level porn sites on the internet work.  It doesn't sound like the greatest job in the universe to run most of those sites.  Plus you've got to deal with potentially getting sued for copyright infringement.  Like here.  Not fun at all.  Hardly worth the time, in my opinion.  But at least you get to say that you run a porn site for a living.  So if being able to truthfully say that at a cocktail party is your life's objective, then go for it.  Goals.

At the same time, today's Ninth Circuit opinion is basically a primer about how to run a porn site that massively infringes other people's copyright without actually getting held liable.  Just upload a ton of porn, let your users upload a ton of porn, and then do some very basic stuff to make sure you comply with the DMCA takedown requirements.  And, boom, you're immune.  Notwithstanding the fact that your site has a ton of stuff that violates someone else's copyright.

Judge Kleinfeld's opinion gives tons of cogent reasons why the defendant here wasn't liable given the contours of the DMCA.  And his analysis is pretty darn persuasive.  Plus, rarely do you see opinions that contain (as here) the word "".  So the opinion is notable, if only for that.

As I said, I think that Judge Kleinfeld's opinion is pretty darn good on its own terms.  But I did have two thoughts as I read it that I thought might be worth sharing.

First, Judge Kleinfeld raises -- but doesn't answer -- an interesting issue.  The DMCA and Ninth Circuit precedent says that you're not immune under the statute if you decide what to post at your "own direction," as opposed to merely posting whatever stuff users upload.  That basic concept seems right.  So too does Judge Kleinfeld's conclusion that the site here doesn't run afoul of this exception merely because it actively screens out child pornography, stuff that obviously violates copyrights, etc.

Sounds right.  We want people to do that.  And that doesn't mean that you're really just posting your "own" stuff or stuff at your own direction.  Cool.

But Judge Kleinfeld says that even though screening out kiddie porn doesn't mean that you're "actively" directing what's on your site, he says that "perhaps if Lange’s site were flooded with pictures and videos of kittens playing with yarn, he would change his rule and exercise judgment about whether the material was pornographic enough to host."  Which I'm sure is right -- the guy definitely wouldn't want tons of yarn-playing kittens (rather than porn) on the site (unless, I guess, there's some kink I don't know about).  Plus, I love the fact that Judge Kleinfeld works in the idea of kittens (of all things) in an opinion about a porn site.  Well done.

But here's the thing.  What about that?  What if people did flood porn sites with kitten videos?  I'm certain the operator would screen the things out.  And that might well demonstrate that the site is what it in fact all these sites are:  operator-controlled, at some level, because the operator only wants pornSo why don't copyright owners do this all the time?!  Just flood every major porn site with kitten videos, let the operator screen 'em out, and then sue.  In short, make Judge Kleinfeld's hypo a reality.  Seems like that would work.  And pretty cheaply at that.  (The porn site here, for example, lets users upload 999 videos at a time.)

Interesting thought experiment, at least.  And maybe a practical one for copyright owners as well.

My second thought's a broader one.

The DMCA articulates another exception for when the site owner knows full well that its site has material that violates copyright.  And there are Ninth Circuit cases that make clear that you can't just sit there and host massive copyright violations (e.g, be a pirate site with full movie downloads) and claim immunity under the DMCA.  If you know your place is chock full of copyright violations, you aren't immune.  Whereas if you've just got isolated copyright violations here or there, and you take those down once you know about them, you're okay.

You can see why that's the rule.  It makes sense.

The copyright owner in the present case says that the defendant here knew that his site was full of copyright violations, so the exception applies.  His best evidence was that almost all of the clips look professionally produced, fancy, etc.  But Judge Kleinfeld has a pretty decent response.  He says -- rightly -- that in the modern era, with smartphones and all, pretty much anyone can make a porn video that looks pretty darn fancy.  So the fact that the things "look" like movies doesn't necessarily mean that they are, in fact, professionally made (e.g., likely copyrighted) things.

Good argument.  Seems right.  Makes sense.

But here's the thing.

Yeah, it may be unclear for any given clip on a porn site whether it's for sure professionally produced.  But come on.  Seriously:  When you see these things, you know full well that the overwhelming majority of 'em come from copyrighted movies.  Might some of them be from homemade sex tapes that the owner uploaded?  Sure.  Can you be 100% positive that a given clip is from a full-length porn movie?  Maybe not.

But you are like 90% sure.  And, similarly, you can be extremely confident that, on the whole, the vast majority of what's on a given site is from copyrighted movies.  You just know.  And know to a degree of absolute moral certainty.  Notwithstanding all the arguments that Judge Kleinfeld rightly makes and the millions of individual clips, any one (or dozens) of which could possibly be sex tapes that were uploaded by their creators for free.  Still:  Visitors to the site know full well they're from movies.  And the owner of the site knows this even more.

So what you basically have as a result of today's opinion is precisely what you see out on the Internet.  Massive, obvious copyright violations.  On a virtually limitless scale.  But because you can't "prove" that the owner of the site "knew" that there were massive violations, the DMCA allows 'em to get away with it.  To the benefit of the public but to the detriment of copyright owners.

I had even thought of "proving" the point.  I decided to go on the web site at issue in this opinion -- -- and pick 100 clips at random and see if I could quickly find out which movies they came from.  My guess was that in an hour or two I could easily find 70 or 80 percent of the full-length, copyrighted movies from whence those clips were cut.

So I tried.  For about two minutes.

But, ugh!  There's some nasty stuff in there.  So I quickly abandoned the project.  Just not worth it.  (And, no, I'm not just rationalizing to my IT department why my work computer has recently visited some inappropriate places.  Seriously.)

Still, had I tried, my strong sense is that one could prove that, on virtually any given porn site, the majority of the clips in fact come from copyrighted material.  Since that's, in fact, what everybody knows and expects.  Because, yes, there's some legitimately amateur stuff out there, I'm sure.  But there's a lot more professionally produced stuff.  'Cause there's a lot of money in it.  And that's where most of the stuff in fact comes from.  Even if, as Judge Kleinfeld notes, it's hard to absolutely prove knowledge with respect to any individual person with respect to any individual clip.  In the aggregate, what's going on is clear.  Just like I sometimes know that a number of students in a given class have not done the assigned reading even though I can't prove to an absolute certainty that any particular one of 'em is a culprit.

So, anyway.  A blow today for continuing massive copyright violations on porn sites.

One final thing.  It took Judge Kleinfeld over two and a half years after oral argument to write up this opinion (alongside Judge Rawlinson's partial dissent).  That's a ton of time, no?

Probably due to all the "research" that was required for the opinion, no doubt.

Tuesday, March 13, 2018

People v. Johnson (Cal. Ct. App. - March 13, 2018)

Yes, the defendant might have been faking it.  Might.  Maybe, just maybe, he simply wanted to delay the trial by getting a competency hearing.

But if that's so, he was doing a darn good acting job.

"Defendant Derek Antonio Johnson . . . engaged in multiple acts of self-mutilation, shouted to voices in his head, could not be quieted during court proceedings, defecated in his pants, was placed in a medical unit at the prison where he was given medication and was put on a suicide watch, and his lawyer expressed doubt throughout the trial about his mental competence to understand the proceedings and to assist in his defense."  And that's just a summary.  The actual facts are incredibly disturbing.  Seems to me like he may well have been having incredibly serious mental problems.

But the trial court thought he was faking it.  Since there were period in which he was normal, the trial judge thought the defendant just wanted a delay in the trial date.

Again:  Maybe.  But when you're faced with substantial evidence -- as here -- that the guy may be incompetent, you've got to hold an actual hearing.  With people who are actually trained to sniff this stuff out.  You can't just come to a conclusion based on your own beliefs.

So holds the Court of Appeal.

Monday, March 12, 2018

Orr v. Plumb (9th Cir. - March 12, 2018)

Don't wait for the district court to enter a final judgment on a separate document.  Just go ahead and appeal.  Early appeals are fine. Whereas late appeals can kill you.

That's the basic message behind today's Ninth Circuit opinion.  Appellant thought that the jury's answers on a special verdict didn't start the clock ticking for the appeal, and waited instead for the district court to enter a formal "judgment" on a separate document.  As the district court was surely required to do (but didn't).

That was a mistake.  The return of the special verdict was subject to immediate appeal since it ended the case.  Waiting more than 150 days thereafter killed you.

Sorry 'bout that.

Friday, March 09, 2018

GMRI v. California Dep't of Tax & Fee Administration (Cal. Ct. App. - March 9, 2018)

Here's something I hadn't thought about before.  But I feel educated now that I know it.

Lots of restaurants (in my experience) add a mandatory or "optional" gratuity to large parties; i.e., when there are eight or more people in the group.  Red Lobster and Olive Garden restaurants -- which (during the relevant period) were owned by plaintiff GMRI -- followed this general practice.  The customer could add an additional tip beyond this amount, or could ask that the "optional" tip be taken off, but basically, it's what you paid.

That's my experience too.

What I hadn't thought of before is how that "optional" tip was taxed.

Tips ordinarily aren't taxed -- at least for sales tax -- because they're truly "optional."  (The recipient has to pay income tax, but we're talking about only sales tax here.)  But mandatory tips are, since they're part of the price of the service.  So which one is this one?

California says that it's essentially mandatory (or at least standard), so it's subject to sales tax.  GMRI disagrees.

The Court of Appeal holds that California is correct.  And I think that's right.  At least given the text of the relevant authorities.

There's an upside to adding on an (essentially) mandatory tip; that way, your employees definitely don't get hosed.  But there's a downside as well.  That way, you're taxed.

So pick your poison.

Thursday, March 08, 2018

Chaney v. Netterstrom (Cal. Ct. App. - March 8, 2018)

Here's an interesting strategic decision.

The parties get "married."  Notice that I put "married" in quotes.  By that, I mean that they get a marriage license, and have a ceremony.  But they never send the completed marriage license back to the county recorder.  So for all the county knows, they're still single.  Whereas everyone else in the universe thinks they're married (and they act like it).

Why do that?  Well, for one thing, it gets your parents off your back.  They think you're "married" even though you're not.  More significantly, that way you can still claim to be single.  On your tax returns (hence avoiding the marriage penalty).  With the Social Security office; e.g., as here, so the "wife" doesn't lose her Social Security survivor benefits (from a prior marriage).

See how that works?

Now, that's a problem when and if the two of you split up, and one of you asks to get "divorced."  Because then we're going to have to figure out if you were ever actually married in the first place.

But today's opinion solves that problem for us.  The Court of Appeal holds that, yep, you're still in fact married, even if no one returns the license.  Notwithstanding the fact that the statute clearly says that when you pull a confidential marriage license, you're required to send the completed form back to the recorder once you're married.  (The statute says that a confidential marriage license “shall be returned by the person solemnizing the marriage to the office of the county clerk in the county in which the license was issued within 10 days after the ceremony.” (§ 506, subd. (c), italics added; § 423 [“The person solemnizing the marriage shall return the marriage license . . . to the county recorder . . . within 10 days of the ceremony.” Italics added]; Health & Saf. Code, § 103150 [A marriage “shall be registered by the person performing the ceremony.” Italics added].) The word “shall” means that the act is mandatory. (§ 12.)")

I'm just fine with that result.  It seems like the Court of Appeal gets this one right.  If you pull the marriage license and hold the ceremony, you're still in fact married, even if you don't comply with the statute's requirement that you return the form.  It's the ceremony that married you, not the mailing back.

Though notice that this doesn't obviate all the tax- and Social Security-related benefits that this couple received during their marriage.  They don't have to give all that stuff back.  Or at least not yet; and, potentially, never.

So maybe that's an actual strategy.  Pretend to get married, don't return the form, say to everyone except the government that you're married, and get all the benefits of marriage without any of the liabilities.

In theory, at least, that works.

Good luck trying to get your would-be spouse to agree to that.

Wednesday, March 07, 2018

Doyle v. Firemans Fund Ins. Co. (Cal. Ct. App. - March 7, 2018)

The case is all about some counterfeit wine.  So Justice Moore takes the opportunity to throw in a ton of Shakespeare references to wine.  Plus lots of sentences with phrases like "Yea verily," "We agreeth with the trial court . . .," etc.  You get the theme.

Okay.  Fair enough.

In the end, the Court of Appeal decides that there's no insurance coverage for the $18 million (!!) of counterfeit vintage wine that David Doyle bought from convicted felon Rudy Kurniawan.  So a bad day for Mr. Doyle.

But Justice Moore ends the opinion with another Shakespeare quote for him:  "Finally, we can merely offereth to Doyle this small piece of wisdom from the Bard of Avon: “The robbed that smiles steals something from the thief.” (Shakespeare, Othello, act I, scene 3.)"

Yeah.  Call me crazy, but I don't think that's going to give Doyle much solace.

Tuesday, March 06, 2018

People v. Monk (Cal. App. Div. Sup. Ct. - March 6, 2018)

This is the most important appellate opinion in California ever.


It's about a $25 fine.  For crossing an intersection when the "DON'T WALK" sign was flashing.

Yet, notwithstanding the incredibly tiny monetary interest at stake, the opinion may well have more practical significance to most of us than nearly every single one of the other appellate opinions we read.

Pamela Monk got her $25 ticket because a police officer saw her enter the crosswalk when the red "DON'T WALK" sign was flashing, and was in it's "countdown" mode; e.g., was at number "7" of the 15-second countdown.  The officer said, and the trial court found, that this violated the Vehicle Code.  On the theory that once the sign says don't walk, you're . . . wait for it . . . not supposed to walk.

But the Appellate Division reverses.  That's not what the law actually says.  Or at least not what it says now.

The law is instead that you're allowed to enter the intersection -- even if it says "DON'T WALK" -- as long as (1) the red sign (or the red hand) is still flashing, rather than constantly red, and (2) you finish your walk -- i.e., are out of the intersection -- before the countdown expires.

That's what I always thought the rule was.  And it's how I in fact walk across in street in those situations.

Good to know it's also, in fact, the law.

Monday, March 05, 2018

People v. Garton (Cal. Supreme Court - May 5, 2018)

The facts of this death penalty opinion read like a made-for-television movie.  A really bad made-for-TV movie.

If it were an actual movie, I'd have turned it off after the first three minutes because it's so pathetic, implausible, and overwrought.

But it's actually real.  So I keep turning the pages as I read today's opinion.  Yes, it's the conviction of a guy who's clearly seen too many movies.  But it's amazing that he actually makes this stuff up.  Or that people seem to buy it.

Of course, there are real victims as well, so at the same time, it's incredibly sad.

It's a set of facts I wouldn't believe if someone pitched 'em to me.  Yet here they are, straight out of an opinion from the California Supreme Court.

Friday, March 02, 2018

U.S. v. Studhorse (9th Cir. - March 2, 2018)

First of all, "Kenneth Studhorse" sounds like the made-up name of a porn star, not the actual name of a defendant.

But, apparently, it's not made up at all.  It's instead the actual name of someone convicted of being a felon in possession of a firearm and a violent felon in possession of body armor.

Second of all, it's symptomatic of contemporary legal analysis that it takes the Ninth Circuit sixteen single-spaced pages to say why attempted first degree murder is a "crime of violence" under federal law.

Of course it's a crime of violence.  It's attempted murder!

Judge Smith's opinion offers a bit more detail, but comes out the same way.

Thursday, March 01, 2018

Herterich v. Peltner (Cal. Ct. App. - March 1, 2018)

Talk about the Court of Appeal doing work for one of the parties!  Check this out.

Plaintiff files a lawsuit.  Defendant articulates numerous defenses, but never alleges that its conduct was privileged.  Defendant files a summary judgment motion, but not (obviously) on the ground that their conduct was subject to any privilege.

The Court of Appeal notes on appeal, on its own initiative, that the whole lawsuit might be barred by the litigation privilege.  So requests supplemental briefing.

And, boom, in the end, resolves the appeal entirely on the ground that the litigation privilege applies.  A defense the defendant never raised below, never argued in its original appeal, and mentioned only at the direction of the Court of Appeal.

I'm not saying the opinion is wrong.  The lawsuit does indeed seemed barred by the litigation privilege.  And that's an issue of law, so the Court of Appeal probably does have discretion to raise the matter notwithstanding its wholesale omission by the parties.

But wow.  You gotta be hating the Court of Appeal if you're the losing attorney in this one.

Whereas thanking your lucky stars for the Court of Appeal's (unsolicited) help if you're on the other side.

People v. Perez (Cal. Supreme Ct. - March 1, 2018)

When you choose a home pretty much at random to rob, and stab and kill the woman inside of it, it's not at all surprising that the trial court sentences you to death and that the California Supreme Court unanimously affirms.  Particularly given this particular defendant's lengthy and disturbing criminal history.  (Before the murder, Perez had the dubious distinction of being committed to the California Youth Authority at age 14, making him "one of the youngest wards in the CYA system at the time.")

Distressing all around.