Thursday, May 31, 2018

Abbott Laboratories v. Superior Court (Cal. Ct. App. - May 31, 2018)

Plenty of big California appellate hitters participate in this case.  Which holds, in a split opinion, that even though the Unfair Competition Law permits a district attorney to bring a lawsuit in the name of the People of the State of California (and obtain relief on behalf of everyone injured), the law doesn't actually do that, and a local DA is instead limited to civil UCL claims in its own jurisdiction.

There's something to be said for the majority view.  But there's also a lot to be said for Justice Dato's dissent.  Both opinions are well-written and make sense on their own terms (though, in terms of style, Justice Dato's is more concise and punchy).  Reasonable minds could indeed differ on the merits.

It's a super important issue.  Definitely worth review by the California Supreme Court.  For what it's worth, Justice Dato's position is more along the lines of my initial sense of these provisions when I first learned of them some two decades ago.  Even though I totally get Justice O'Rourke's competing considerations.

I'll be interested to hear what the California Supreme Court says about this.  And, to be honest, I suspect that any resolution of the merits in that tribunal would not be unanimous.

Wednesday, May 30, 2018

People v. Brunton (Cal. Ct. App. - May 30, 2018)

It's never all that fun to be booked into jail.  Maybe you've been driving while impaired.  Maybe you've shoplifted.  Maybe you're innocent.  Regardless, before you have a hearing and make bail, you're going to spend a cozy evening in a local jail cell.

Or maybe not so cozy.

Here's Christopher G.'s experience.  He was booked into the local jail here in San Diego.  They give him a random cellmate, a guy named Richard Brunton.  Just another guy spending the evening in jail.

But things go downhill quickly.  Immediately, even.  The victim, Christopher, could be just about any of us.  A guy who's had a bad day and yet it's about to get much, much worse:

"When Christopher entered the cell, Brunton "star[ed] [him] down." Seeing that Brunton already had the top bunk, Christopher placed his bedding on the bottom bunk and his toiletries on an adjacent desk. [Seems reasonable to me.]

Brunton said, "Don't put your fuckin' stuff there. I stand there to get up on the bed." [Not exactly the way you want to begin your interactions with your new cellie.  And pretty unreasonable; exactly where does Brunton want Christopher to sleep?!] Christopher apologized, adding, "You don't have to be so rude about it." Brunton replied, "You calling me rude?" Christopher responded, "No, I'm not calling you rude. I said you don't have to be so rude about it, though." Christopher got into his bunk and pulled his blanket over his head. [Yeah, the blanket over the head is definitely going to solve the problem.]

Brunton then punched Christopher hard twice in the back of his head and asked, "You calling me rude?" Christopher responded, "No, man. I want to get the fuck out of here. What are you doing?" He got out of bed and started pushing a button by the cell door to summon a guard. Christopher added, "All I want to do is eat breakfast." Brunton responded, "It's going to be hard to eat without no teeth. . . . I'm going to kill you today. I'm going to murder you. . . . You're going to meet Jesus today." Christopher kept pressing the call button, but no one responded—the communication device in this cell apparently was inoperative. [Seriously?! The urgent call button in the cell is just for show?!]

Brunton kicked and kneed Christopher in the ribs. Christopher screamed for the guards to help him. Brunton grabbed a bath towel, twisted it tightly like a rope, and wrapped it around Christopher's neck. Brunton kneed Christopher in the ribs, dropping him to his knees. Brunton kneed him again and cinched the towel tight. Christopher could not breathe and was "on the cusp of going unconscious." He thought he was going to die.

A guard heard Christopher's "desperate, . . . urgent" yelling, and investigated. The guard observed Brunton standing over and forcefully choking Christopher with a towel. Christopher was "completely limp" and appeared to be unconscious. The guard banged on the cell door with his flashlight and ordered Brunton to let go of Christopher and back away. Brunton did not comply. The guard opened the food port on the cell door and repeated his commands. Again, Brunton did not comply.

The guard radioed to the guard tower to have the cell door opened. With the door open, the guard pointed his Taser at Brunton and ordered him to let go of Christopher. Brunton let go and backed away. The guard ordered Brunton to get on the floor, but Brunton instead stepped on the desk and climbed into his top bunk.

The guard dragged Christopher out of the cell, and another guard handcuffed Brunton and escorted him out of the cell. Christopher was removed from the housing module by gurney and transported to a hospital for medical evaluation."

For all this, Brunton gets a total of six years in prison.  (Which may even go down a year after today's opinion.)  Whereas Christopher gets a terrifying story about his night in the local jail.

Tuesday, May 29, 2018

Airs Aromatics v. CBL Data Recovery Technologies (Cal. Ct. App. - May 29, 2018)

You'd think it'd be an easy rule to remember (and apply).  There's certainly lots of precedent that spells out the rule.

But today's opinion nonetheless demonstrates the need to reaffirm the rule.

It's just fine to say in your state court complaint that you're requesting damages "in excess of $25,000 and in an amount to be proven at trial."  That'll indeed establish jurisdiction and move the case along to trial, without the need for you to worry your little head about whether any specific damages request is too low or too high.

But if the defendant defaults, all you can get is $25,000.  Doesn't matter that the defendant knew that the actual amount at stake was much more than that, that you said "in excess" of $25,000, that you can prove actual damages of many millions of dollars, etc.  It's $25,000 tops.  Because that's the only number you put in the complaint.

And any default judgment in excess of this amount is not merely voidable, but void.

So remember that rule when you draft your next complaint.  Default judgments aren't the usual way things end.  But if all you ask for is $25,000, that may well be all you'll get.

Friday, May 25, 2018

People v. Berg (Cal. Ct. App. - May 25, 2018)

Maybe you were drunk when you were arrested.  But it's now two days later, and you've been in jail the entire time.  You might not have immediately known it at first.  But it makes sense that, after two days, your voluntary intoxication doesn't negate the fact that you had a baggie of methamphatmine in your butt the entire time.

Which, last time I checked, was a crime.

I must say, though, that Mr. Berg remained somewhat classy once he was caught.  As the Court of Appeal recites the facts:

"The deputy escorted defendant to the booking area, where inmates change out of their civilian clothes and are given jail clothing after a visual strip search. As defendant changed out of his civilian clothes, he reached toward his “anus” and started “[d]igging, trying to push or pull something.” The deputy noticed plastic wrapping between defendant’s buttocks. Defendant eventually threw the plastic package onto the floor. The deputy recalled that when defendant was asked what was in the plastic, defendant sarcastically answered “to the effect of, ‘Something not readily available at your local 7- Eleven.’”

Nice.  "Something not readily available at your local 7-11."  Gonna have to use that one myself the next time I'm caught with meth near my anus.

Thursday, May 24, 2018

In re Ruedas (Cal. Ct. App. - May 24, 2018)

I haven't read one of these in a while.  But they're always fun to see.  Opinions that, from the very first paragraph, jump out at you and let you know full well who's writing it even before you reach the end where the author of the opinion is listed.

Today's opinion begins:

"The jurisprudence of retroactivity is a labyrinthine edifice of both critical importance and daunting complexity. It is located at one of those intersections of freedom, justice, and pragmatism that are all too common in the criminal law, and make its practice a humbling experience. In this case, we are asked to offer our best judgment about whether the rule announced in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) is prospective or retroactive. We do so with a caution bordering on apprehension, but we arrive at a firm conclusion the rule is prospective only."

Now, to be brutally honest, I found the first line to be slightly more linguistically complex than I typically prefer.  But the rest of the paragraph is a classic.  And made me know from the very outset that I was reading an opinion by this person.

P.S. - Can I just say:  What a day.  Thus far, the Court of Appeal and California Supreme Court have published nearly a dozen different published opinions.  Which collectively total over 400 pages of text.  Slow down!  Spread it out!  Some of us have other work we gotta get done today as well.  (And the day's not even over; maybe the Court of Appeal will crank out some other opinions later today as well.  Ensuring that, yep, I'll do virtually nothing today except pick up my kids from school and read judicial opinions.)

Multani v. Knight (Cal. Ct. App. - May 24, 2018)

I wish I'd have thought of this as a question for a first year law school exam!  It's a great one.

Justice Willhite raises the issue concisely:

"The primary question presented in this case is: Can a landlord be held liable to a commercial tenant for damage to the tenant’s property resulting from an alleged sewer backup when the tenant (who had a month-to-month tenancy in the premises after her lease expired) had stopped paying rent, had been served (but failed to comply) with a three-day notice to pay rent or quit, and had been named in an unlawful detainer action filed before the alleged sewer backup occurred?"

Oooh!  Good one.  I could definitely see law students coming up with good arguments on both sides.  Ditto for actual lawyers.

Here's how the Court of Appeal answers the question:

"We find that the month-to-month tenancy was terminated by the tenant’s failure to pay rent coupled with the landlord’s filing of the wrongful detainer action. Therefore, as of the filing of the wrongful detainer action, the tenant was a tenant at sufferance who had no lawful right to possession of the premises. Accordingly, the landlord is not liable for damage to the tenant’s property left on the premises when that damage was not caused by the landlord’s intentional act or negligence."

Notice the distinction:  It's not the nonpayment of rent that absolves the landlord from liability, but only the filing of the lawsuit (plus nonpayment) that creates the absolution.

You could see a variety of other possible resolutions, from the landlord still being liable (since the tenant was still in possession) to the landlord not being liable at all (because the tenant had breached by nonpayment) to the landlord not being liable only upon the date the unlawful detainer action was adjudicated in the landlord's favor.  But the Court of Appeal draws a different line.

The question would still be a good one on an exam.  But since the Court of Appeal has already given a pretty good answer, we'll now have to find another one.

Maybe:  "Comment upon and critique the line drawn by the Court of Appeal's opinion in Multani v. Knight?"

Wednesday, May 23, 2018

J.N. v. Superior Court (Cal. Ct. App. - May 23, 2018)

You could see why the trial court thought it made sense to charge the defendnat in adult criminal court.  He's twenty years old.  He's charged with murder.  The juvenile court would lose jurisdiction over him entirely in three short years.  And he's got a prior record.  Given those facts, you'd facially think it makes total sense to put him in adult court.

But read Justice O'Leary's opinion.  This is not the usual case with those types of facts.  You can see why the Court of Appeal comes out the other way, holding that the guy should be in juvenile court.  So holding even though the standard of review is "substantial evidence" and abuse of discretion.

A very comprehensive opinion.

Monday, May 21, 2018

Recchia v. L.A. Dep't of Animal Svcs (9th Cir. - May 1, 2018)

What I remember about my first-year property class in law school largely surrounds issues involving wild animals.  Who owns them, blah blah blah.  I distinctly remember thinking that this seemed to be an immensely non-practical way to begin law school.  Who really cares who owns a particular fox?!  Given that there aren't a lot of wild foxes running around San Diego -- or (at the time) Cambridge -- it was difficult for me to perceive any practical value in learning the detailed rules about who can own a wild animal running around.

Clearly, I was wrong.

This Ninth Circuit opinion is about the Fourth Amendment validity of a seizure in which the L.A. Department of Animal Services impounded a dozen or so pigeons that a homeless person kept in cages on the street and then euthanized them because they were in really bad shape.  (For example:  "One pigeon had a baseball-sized tumor protruding from its abdomen and extensive feather loss. Another pigeon had tremors and continually walked in circles. Another pigeon had a shriveled, non-functional right eye. Still another pigeon had contorted legs, feather loss, and could not walk or fly. Some birds had wobbling necks or necks in unusual positions. Several birds were missing toes or toenails, or had very long toenails that were curled in circles.")

The constitutional issues are interesting for sure.  But there's a particular footnote that I thought to be especially fascinating.  And that took me back to those halcyon days of Property.

The text of the opinion says:  "Defendants have agreed for the purposes of this appeal that Recchia had a property interest in his pigeons."  At which point Judge Gould drops the following footnote:

"Specifically, defendants have agreed “[f]or the purposes of this appeal, there is no dispute there can be some property interest in pigeons.” Accordingly, here we treat Recchia as having a property interests in the pigeons. However, in a case where the issue was properly raised for decision, there would be a substantial issue whether a person can have a property interest in wild animals such as pigeons, raccoons, or coyotes, to name a few. See Bilida v. McCleod, 211 F.3d 166, 173 (1st Cir. 2000); see also Cal. Fish & Game Code § 2000 (prohibiting the taking of a wild bird except as provided for in the California Fish and Game Code)."

Dude!  It's like it's 1989 and I'm back in Mary Ann Glendon's Property class.

Good times.

Friday, May 18, 2018

Easley v. City of Riverside (9th Cir. - May 18, 2018)

I agree with the Ninth Circuit that it's not improper for a district court to demand that the parties brief qualified immunity even though the defendant hasn't elected to file a motion on the issue.  Though it's certainly unusual.  Typically, we let the parties take the lead on what motions and defenses they elect to advance.

But I do wonder about the substantive content of the majority opinion, to which Judge Pratt (sitting by designation from Iowa) dissents.  Yes, the person who was shot was fleeing police officers, but he wasn't even suspected of a serious crime.  Yes, the person who was shot also had a gun on him, and that's incredibly serious.  When a police officer's chasing a person and that person has a gun, you can see why the police might potentially shoot him, in (at least perceived) self-defense.

But here's the thing.  As the victim was running, he grabbed at his waistband, pulled the gun from his pants pocket, and threw the gun away.  Two to four seconds later, the police officer shot the victim in the back and in his right arm.

The majority says that even "taking th[ose] facts and allegations in the light most favorable to [the victim], [the police officer's] use of deadly force was objectively reasonable."  The dissent disagrees.

If the police officer shot the guy the instant he was throwing the gun, I could see how one might find that reasonable (if mistaken).  Maybe the officer misperceived the guy starting to throw the gun as an attempt to turn and shoot.

But when a guy on the run throws something away, and then four seconds later the officer shoots him, that seems significant to me.  Four seconds is a long time.  One.  Two.  Three.  Four.  It seems strange to say that after a guy throws a gun away, after it's crystal clear there are no shots fired, and after the guy simply keeps running after throwing a gun away, an officer can wait four seconds and then shoot the guy, no reasonable person in the universe could say anything other than "Yeah, that seems right to me.  Reasonable."

Admittedly, it's the heat of the moment.  Hindsight's 20/20.

But shooting a guy 50 seconds after he throws a gun away seems totally wrong.  Ditto for 20 seconds.  Four seconds?  What's the right line?  I'm not exactly sure.

But I wonder if a reasonable person couldn't conclude that the line is more like 1 or 2 seconds.  One one thousand, two one thousand.  Enough time to perceive that, yeah, the guy's not actually shooting at you, so don't gun him down.  And that four full seconds is too long.

So I'd definitely get granting summary judgment if the guy was shot a second or two later.  But four seconds, to me, is in a much less clear gray area.  Perhaps sufficiently gray that reasonable minds may in fact disagree, and in which I'm not completely certain that my own belief on the subject was conclusively the correct one.

Thursday, May 17, 2018

Benaroya v. Willis (Cal. Ct. App. - May 17, 2018)

The holding of today's opinion both is important and can be concisely summarized.  Whether a party who didn't sign an arbitration agreement can nonetheless be compelled to arbitrate (e.g., as an alter ego, as estoppel, etc.) is an issue for the court, not the arbitrator.  And it doesn't matter that JAMS rules say the contrary.  The court decides.

Plus, it's a California case, which means there's always the possibility of celebrity involvement.  As the caption here reflects.  The "Willis" is Bruce Willis.  And he gets a $5 million-plus arbitration award against a producer, but it only survives against the company.  Good luck collecting on that.  Although the arbitrator held that the wealthy individual behind the company was also liable, we'll need a court to decide that issue.

So no immediately forthcoming check for Mr. Willis.  The exact opposite of Yippie ki-yay for him.

Wednesday, May 16, 2018

U.S. v. Briones (9th Cir. - May 16, 2018)

You gotta be thinking this one may go en banc, no?

Not because there's a circuit split, or it's a death penalty case, or anything like that.  It's not.  It's just a fact-intensive case about a single defendant.  It doesn't even really raise any substantial issues of law either.  It's instead merely about whether the facts and transcript below demonstrate sufficient support for the life sentence imposed by the district court below.  Period.

That's not something that one would normally think has even a shot at en banc review.  It affects only one person, and one person only.

And yet I think the thing may perhaps go up.

In part because it's a life sentence for someone who was a minor (seventeen) at the time he committed the (admittedly terrible) crimes at issue here.  Which means, in the federal system, that he's going to almost certainly spend the actual rest of his life in prison for something he did as a kid.  ("Because the federal system does not permit parole or early release from life sentences, see 18 U.S.C. § 3624, Briones’s sentence is effectively for life without the possibility of parole.")

Normally, that wouldn't matter.  We lock up kids forever plenty of times.  But pretty much everyone seems to agree that this case involves someone who'd far from the hardened, unreformable criminal that's the stereotype of someone we put in prison forever.  He's now been in prison for 20-plus years, and his conduct for the past two decades has been completely unblemished by any misconduct.  As the majority opinion notes, the evidence below demonstrated that "in all his time in prison he had not been written up once for a disciplinary infraction, that he had no gang involvement, that he had been working continuously, and that he married his girlfriend with whom he has a now-adult child, and that he sees his wife regularly."  And even the government recognized that "Briones was 'really doing well in prison,'” as opposed to what you might well initially think of someone with his history.

I hear you.  "So what?  He committed serious crimes (albeit as a juvenile), and the district court looked at the evidence and sent the guy to prison forever.  That's life.  At least in our justice system.  Maybe right, maybe wrong.  But hardly subject to en banc review.  He'd never get the votes."

My thought too.  At least initially.

But the lineup of the panel may end up persuading me the other way.  The majority opinion is written by Judge Rawlinson.  That may suggest that there are a ton of judges on the Ninth Circuit who might well see the case the same way.  Though the judge that joins her is Judge Ezra, sitting by designation from Hawaii, so you don't know for sure.

But dissenting is Judge O'Scannlain.  Hardly some shrinking violet let-em-all-out leftie.  Exactly the opposite, even.  If even he thinks that the right result is to remand for resentencing, that might well suggest that one might potentially persuade other folks that the right result here is not to lock this person up for the entire remainder of his life.

Now, look.  This is not the "old days" of the Ninth Circuit.  Many of your heartfelt lefties in criminal cases are now gone.  Some of the strongest voices for correcting serious individual injustice through the en banc process are now silent.

But not all of them.

The prospect of compelling someone to die in prison when they might well be a "different person" from the one who committed the heinous crimes of a teenager might perhaps prompt a serious look at this case.  If only knowing that even some ordinarily hard-core people (like Judge O'Scannlain) may be perhaps sympathetic to the cause -- not in general, but in this particular case.

We'll see.  It'll be a good test case about the contemporary composition of the court, and it's desire (or willingness) to do justice in a given case.

Yeager v. Holt (Cal. Ct. App. - May 16, 2018)

How the mighty have fallen.

He ultimately wins today's appeal, which concerns an anti-SLAPP motion filed against him that should never have been attempted.  He even gets awarded his costs on appeal.

But General Charles E. "Chuck" Yeager nonetheless doesn't enhance his reputation with the present lawsuit.  Here's in part what the Court of Appeal says in footnote 3:

"It may be, as Holt claims, that the Yeagers have filed baseless litigation, but an anti-SLAPP motion is not the right vehicle to litigate this case. The trial court pointed out at the hearing that claim or issue preclusion might bar this suit or Holt might have a claim for malicious prosecution. We express no view on these points, but note with disapproval the ad hominem attacks against Yeager made by Holt in the trial court and on appeal. “Trying to win an argument by calling your opponent names . . . only shows the paucity of your own reasoning.” (Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417, 1430.) We deny Holt’s requests for judicial notice of other cases declaring one or both of the Yeagers to be vexatious litigants, as that material was not before the trial court when it made the order under review."

You'd hope that General Yeager would get the message on remand and drop the suit, notwithstanding winning the appeal.

Though I fear that won't be the case.

(And who knows.  Maybe it's not even his fault.  He's 95 years old.  He was married to his wife Glennis for 45 years, until she died of ovarian cancer in 1990.  He then married Victoria D'Angelo, who's 41 years younger than him, and vociferous litigation between the couple and Chuck's family promptly commenced.  His wife Victoria is also a party to the present action.  Victoria and Chuck are both now on the vexatious litigant list.  Maybe it's all the fault of the 95-year old.  Maybe not.)


Tuesday, May 15, 2018

Huang v. Hanks (Cal. Ct. App. - May 10, 2018)

A lawsuit against Tom Hanks!  That's gotta be interesting, right?

Wait.  It's an appeal that's consolidated with 30 other cases as well.  One of which is against Britney Spears!  Super exciting!

There's more!  Another case against Danny DeVito.  Another against Drew Barrymore.  Stallone.  Zuckerberg.  Spielberg.  It's a who's-who of Hollywood.  You're no one if you've NOT been sued by Han Jing Huan.

Except for the fact that he's now on this list.  And loses.  Again.

Monday, May 14, 2018

Alexander v. Scripps Memorial Hospital (Cal. Ct. App. - May 11, 2018)

This opinion primarily concerns a variety of technical and procedural issues, but the underlying facts present a difficult moral quandary.  What should a hospital do when someone's obviously terminally ill -- days from dying -- but has expressed in writing that she wants all aggressive measures (CPR, etc.) done to her in an effort to preserve her life?

On the one hand, what she says goes.  It's her life.  If she wants CPR, she gets it.  If she wants to have medical procedures done, fine.  That's what we mean by autonomy.

On the other hand, are doctors and other medical professionals morally required to do things that they are certain will only cause more pain and suffering?  Pounding on a chest or cutting open a patient who's in the terminal stages of cancer (with metastases everywhere) when all that would do is to keep a minimally conscious patient alive and in constant pain for another couple of days?  What if they think that violates their own oath to "do no harm"?

Yet doesn't it just seem wrong to cut down someone's nutrition in their feeding tube because it's doing more harm than good?  How you balance autonomy vs. other interests seems incredibly tough to me in this context.  Particularly when someone is literally days away from what we know is certain death and is in both pain and minimally aware.

One thing I know for certain.  I'm glad that the graduate school I attended was law rather than medicine.

Thursday, May 10, 2018

Strategic Concepts LLC v. Beverly Hills USD (Cal. Ct. App. - May 10, 2018)

I assume that the Beverly Hills Unified School District isn't completely impoverished.  Still, this is absurd.  It personifies everything that some people think about government contracts:

"Karen Christiansen was employed as director of planning and facilities for the Beverly Hills Unified School District (District). Among her duties Christiansen administered the planning, construction, and maintenance of the District’s school facilities. She received a salary of $113,000 per year plus a $150 per month automobile allowance. Her written employment agreement ran from February 2005 through June 2007.

In 2006, Christiansen lobbied District officials to change her position from an employee to a consultant. A former member of the Board of Education (Board) testified, “Ms. Christiansen lobbied hard to move from the director of facilities and planning to consulting status.” In June 2006, Christiansen entered into a new three-year contract with the District terminating her status as an employee and naming her a consultant. The new contract, however, did not change her duties. . . .

Pursuant to the contract, Christiansen’s two minor children were considered children of a District employee for the purpose of attending school in the District. Christiansen was allowed to continue her use of the District’s email. . . . The contract set Christiansen’s compensation at $160 per hour with a maximum compensation of $170,000 per year. . . . Christiansen formed Strategic Concepts, LLC (Strategic), of which she was the sole owner. In early 2007, Christiansen assigned her consulting contract to Strategic. . . .

McVeigh and Assistant Superintendant of Business Services Cheryl Plotkin were required to review and approve Strategic’s invoices. McVeigh described her relationship with Christiansen as “friendly, friends.” Plotkin frequently socialized with Christiansen. She attended parties at Christiansen’s home. They went on two pleasure trips. At Plotkin’s request, Christiansen obtained tickets to a show in Las Vegas for Plotkin and her husband. They reimbursed her. Christiansen hired Plotkin’s daughter to work for Strategic.

In spite of the $170,000 per annum contract limitation, Strategic’s invoices were approved and paid in the following amounts: $253,520 in 2006; $1,313,035 in 2007; and $1,390,804 in 2008. No one from the District alerted the Board about the over-payments. The invoices simply appeared on the Board’s “consent calendar”; that is, items that the Board does not usually review on an individual basis.

When Christiansen discovered her contract and payments were being questioned by the District’s Citizens’ Oversight Committee, she emailed Plotkin: “Let’s just say that the contract was developed by your attorney . . . . Please shut this down fast.” . . .

Christiansen’s friend was the District’s counsel, David Orbach, and his partner, David Huff. Christiansen, Orbach and Huff were among a group of friends who often met for drinks after work. In emails Orbach referred to Christiansen as “my queen” and she referred to him as “my prince.” Christiansen sent Orbach and Huff an unsolicited picture of herself in a black bikini. The attorneys and Christiansen exchanged a number of emails containing sexual innuendo.

On June 3, 2008, the District and Strategic entered into a new consulting contract. The contract terminated on June 30, 2009. The contract it replaced provided for maximum compensation of $170,000 per annum. The new contract provided for compensation per an hourly rate schedule attached as exhibit B to the contract. In addition, the contract provided for a retroactive payment in an amount not to exceed $950,000 for services performed between January 1 and June 30, 2008. . . .

Christiansen proposed that the District retain Strategic for program and project management of the projects to be funded by the bond. Christiansen proposed an amendment to the 2008 contract that Strategic be paid $6 million (2 percent of the $300 million project budget) for program management and $10.125 million (4.5 percent of the construction value of $225 million) for project management. . . . At a Board meeting in August 2008, Plotkin recommended that the Board approve Christiansen’s contract amendment. The Board approved the contract amendment three-to-one with one abstention. No other bids were taken.

On November 8, 2008, the voters passed the $334 million bond measure. On November 20, 2008, Christiansen sent the first invoice for program and project management services in the amount of $231,414.24. Between November 2008 and August 2009, Strategic collected more than $2,000,000 in management fees even though no specific project had been approved."

Wow.  The word "abusive" doesn't even come close to accurately describing these transactions.

Is today's Court of Appeal opinion about Christiansen's conviction for the above-described conduct?  Nope.  "Christiansen was prosecuted for a criminal violation of section 1090. A jury found her guilty. She was sentenced to more than four years in prison and ordered to pay the District $3.5 million in restitution. Division 1 of this court reversed the conviction in People v. Christiansen (2013) 216 Cal.App.4th 1181. The court reasoned that for the purposes of criminal law, section 1090 did not apply to independent contractors."

Today's opinion is instead about her lawsuit against the Beverly Hills Unified School District.  One that went swimmingly (for her, at least).  "The jury awarded Strategic general contract damages of $7,710,509 based on $16,125,000 in program and project management fees less overhead and payments received. The jury also awarded Strategic $6 million in special contract damages based on the District’s actions destroying the value of Strategic. The trial court awarded Strategic $4,310,660 in prejudgment interest pursuant to Civil Code section 3287, subdivision (b), and $2.3 million contractual attorney fees. The total judgment is $20,321,169."

Thankfully, the Court of Appeal reverses.  Because there's still a semblance of rationality in the universe.  One in which someone like Christiansen doesn't receive an additional $20 million windfall.

Wednesday, May 09, 2018

U.S. v. Mikhel (9th Cir. - May 9, 2018)

When the Ninth Circuit summary of the opinion itself spans to the seventh page of the slip opinion, you know you're going to be reading a long opinion.  When the opinion starts with an extensive table of contents, that only confirms that it's going to be really long.  And when you're already in the triple digit page numbers and you've still got twenty-some single-spaced pages to read; well, you're pretty much exhausted.

Not surprisingly, the opinion's very comprehensive.  It's a federal death penalty case, which is rare, so one can understand why the panel's opinion is so detailed.  Plus, it's a horrifying case, and involves a group of foreign (Russian and Lithuanian) nationals who kipnap, hold for ransom, and kill a bunch of wealthy people and their associates.  Ultimately dumping each of their victim's bodies off a bridge in the New Melones Reservoir outside Yosemite National Park.

The time between oral argument and publication of the (unanimous) opinion isn't very long -- four months.  But the time it takes to get there is, as usual, expansive.  The murders were in 2001 and 2002.  The conviction and sentence were in early 2007.  And yet here we are, a full decade-plus later, and the Ninth Circuit only now resolves the direct appeal.  With the inevitable rehearing petition, Supreme Court petition, and federal habeas proceedings yet to come.

Still, you've got to be impressed by the opinion, if only by its length.  It's almost the size of a full-length book.  That's a pretty healthy work product.  Which I assume Judge Bybee didn't entirely draft on his own.  Some very hard work -- over a period of years, most likely -- by a bevy of personnel in chambers.

Monday, May 07, 2018

Daniel v. United States (9th Cir. - May 7, 2018)

Well put, Judge Hawkins.

"Like most cases implicating the Feres doctrine, the claims at issue here arise out of personal tragedy. . . . Rebekah Daniel served honorably as a Lieutenant in the United States Navy, and she worked as a labor and delivery nurse stationed at the Naval Hospital in Bremerton, Washington. . . . In 2013, Rebekah and Walter learned that they were expecting a daughter. Rebekah made arrangements to resign from her post, and with the family leave she planned to take following the birth of her daughter, she did not expect to resume her duties prior to her anticipated detachment from service in May 2014. On March 9, 2014, while still on active duty status, Rebekah was admitted to Naval Hospital Bremerton as a patient and gave birth to her daughter. Although her pregnancy had been considered low-risk, Rebekah experienced postpartum hemorrhaging and died approximately four hours after delivery."

The family sues for medical malpractice, but the district court dismisses the case on the pleadings, holding that it's barred by the Feres doctrine, which prohibits suits arising out of military service.  Judge Hawkins quotes Justice Scalia's dissent in Johnson, in which the latter argued that “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received."  But the panel is nonetheless constrained to affirm, holding that existing doctrine does indeed bar the lawsuit.

But Judge Hawkins concludes the opinion by saying:  "Lieutenant Daniel served honorably and well, ironically professionally trained to render the same type of care that led to her death. If ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so."

Hear, hear.

People v. Reed (Cal. Supreme Ct. - May 7, 2018)

The California Supreme Court affirms the death sentence for two murders in Compton that occurred in 1996 -- and a sentences imposed in 1999.

Not exactly extraordinarily speedy review.

Four years to even appoint counsel for the appeal.  Thirty-eight extensions of time to file appellant's opening brief.  Briefing concluded in 2013, with a decision in 2018.

Not a rush to judgment, for sure.

Tindell v. Murphy (Cal. Ct. App. - May 7, 2018)

This is a whole lot of litigation about a manufactured home bought in Susanville for $320,000, which (since it's "manufactured") apparently has a hard time being refinanced.

A whole lot.

Some people would say that's a great thing about the American system of justice.  Others would perceive the opposite.

Ultimately the plaintiffs don't get any relief.

But they definitely had neutral people hear and think about their case.

A lot.

Thursday, May 03, 2018

In Re D.L. (Cal. Ct. App. - May 3, 2018)

From today's opinion:

"In February 2017, a loaded gun was found in an unlocked closet in a bedroom where two-year-old D.L. slept. In May 2017, the juvenile court determined that the parents’ indifference to the risks posed by leaving a loaded gun in the child’s reach presented an ongoing risk of danger to the child. The court declared the child a dependent of the court and placed her in the home of her mother, with her father having monitored visitation."

Mother should be happy -- beyond happy -- that the untoward consequences of this event were only limited to making her receive family maintenance services and allowing Father monitored visits.  The results could easily have been incredibly tragic instead.

Wednesday, May 02, 2018

Daniels Sharpsmart v. Smith (9th Cir. - May 2, 2018)

California passes a statute that says that if you produce medical waste in California, you have to burn it, not just dump it somewhere.  So Daniels Sharpsmart gets a ton -- actually, 320,000 pounds -- of California-created medical waste, and instead of burning it, ships it to Kentucky and Indiana, which (perhaps not surprisingly) allow medical waste to be dealt with in a much more lenient matter.

California tries to stop this scheme, but Daniels Sharpsmart sues, saying that California's attempt to regulate medical waste generated in California violates the Constitution; in particular, the dormant Commerce Clause.

The Ninth Circuit agrees.

Judge Fernandez's position is that even though California's regulating only medical waste generated in California, once you ship the stuff across state lines, there's nothing that California can do about it.  He says that, otherwise, there'd be "economic Balkanization" of the Union.

A different way of looking at it would be to say that the dormant Commerce Clause sets in stone in the Constitution a nationwide race to the bottom, where the most lenient state -- the one with the fewest environmental or other protections -- sets the standard for the rest of the nation.  Because why go to all the trouble to actually burn medical waste, for example, when you can just go to Kentucky, run some steam over it, and then bury the needles and other stuff.  Much more convenient.

You see some of the same thing at work in transnational trade.  A flow of products -- toxic waste, jobs, whatever -- to whatever nation has the least regulatory burden.  Purportedly to the benefit of everyone; we dump our toxic waste in Mexico (or China, or wherever), which means it's not "our" problem anymore, and the other country gets jobs or whatever.  Plus the associated tumors.

It's definitely the way of the world.  So the domestic application of that principle perhaps isn't too surprising.

Though I'm not sure that the framers, with their heightened sense of state sovereignty, would have thought that the Constitution enshrined that principle to the degree currently interpreted.

Regardless, that's where we are.  The upside is that as long as you can find a state that lets you do what you want, you're free to go -- or ship your stuff -- there.

Which is also the downside.

Tuesday, May 01, 2018

People v. Brady (Cal. Ct. App. - May 1, 2018)

The Court of Appeal sometimes provides neutral insight into the lives of people with whom you are not typically personally familiar.  The first of May brings us precisely such a case.

The case concerns a man named Charles Brady, who lives on the streets of my very own San Diego.  The present offense involves a stabbing.  One that itself gives some insight into the lives of some of those less fortunate.

The story of the offense is this:

"Brady was homeless in downtown San Diego. To make money, he sold hats, costume jewelry, and the like to passersby on the street. Lincoln M., another homeless individual, was one such passerby.

Lincoln was initially drawn to the silver jewelry Brady peddled. The two struck up conversation and became acquaintances, though not friends. Brady learned that Lincoln sold drugs, shoplifted, and—like Brady—had previously spent time in prison. Brady never saw Lincoln carry a gun but knew, or at least strongly suspected, that he carried a knife given the dangers of living on the streets. The two had never argued nor fought previously.

Their relationship soured after a particular transaction. One night in January, Lincoln purchased two pieces of silver jewelry (a necklace and wristband) from Brady for $40. The next morning Brady ran into Lincoln and a friend near a San Diego trolley stop.

Lincoln told Brady that he'd returned the purchased necklace to Brady's "partner" and wanted his $40 returned. He twice threatened, "Diemu, you need to give me my $40 back before I stick you with my kazoo." Brady understood "Diemu" to mean "that [he] was a Blood," i.e., a gang member, and "kazoo" to mean a knife. With one hand, Brady touched or lightly pushed Lincoln on the chest several times while Lincoln fidgeted with his own wallet. As Lincoln turned his gaze away from Brady and looked off into the distance, Brady suddenly grabbed the collar of his sweatshirt with one hand and thrust a knife into his lower abdomen with the other. 

After stabbing Lincoln once, Brady gathered his things and walked away. A private security guard trailed him until the police arrived. While detained, Brady told the police, "I'd fucking stab somebody if they fucked with my property" and "I am going to jail for protecting my mother-fucking property.""

That is a harsh life, and way to live, to be sure.

How did Brady get to this situation in life?  Here's at least a part of his story, from his perspective:

"Brady also took the stand and explained his personal history. He grew up in a small town in Georgia where, at around four or five years old, he was sexually abused at knifepoint by a neighbor. His mother too started physically abusing him at a young age. In one incident, she struck him with the back of a butcher's knife. After about nine years of abuse, fifteen-year-old Brady left home and set out on his own. Having previously been assigned to special education classes, Brady attended no further school.

Things did not get easier for Brady. In his late teens, he was jumped on two occasions by groups of five to six people, armed in the first incident with chains and a tire iron and the second with bats. The beatings led to a seizure disorder.

In his early thirties, Brady came to the West Coast and started using crack cocaine. His drug use led to criminal activity. He was convicted twice for robbery in the 1980's, once for petty theft with a prior in 1994, and once for selling crack to an undercover officer in 1998. As a result, he spent most of the time from 1985 to 2010 in prison. There, he was stabbed on three occasions. The third stabbing incident, involving a broomstick to his eye, left him partially blind.

In 2010, Brady's situation improved somewhat; he attended a residential treatment program that helped him address his addiction to crack cocaine. But as of January 2016, when this incident occurred, Brady remained homeless in San Diego."

So off crack, but still homeless.  And then the stabbing.

So now 15 more years in prison.