In re Marriage of Perow & Uzelac (Cal. Ct. App - Jan. 31, 2019)

Well, now, that's unusual.

You're used to seeing child molestation cases in the Court of Appeal.  Criminal cases.  SVP cases.  Guardianship cases.  All over the place.

Sometimes -- though much more rarely -- you even see molestation issues pop up in dissolution (divorce) cases.  Wife's making a claim, Husband's making a claim, etc.

But rarely do you see molestation issues in (1) high-value divorce cases, (2) involving a ton of attorney's fees.  (Which is perhaps not surprising, because sex offenders tend not to be fabulously wealthy.  With limited exceptions.)

So here, for example, you've got an otherwise run of the mill divorce case.  Two people get married in November 2000:  Richard Uzelac (Husband) and Catherine Perow (Wife).  What's a little unusual for the happy couple is that Mr. Uzelac was a convicted sex offender.  Which Ms. Perow apparently knew.

But she didn't know the details of the alleged offense.  Which, to me, seem pretty important; e.g., something that one should discuss prior to the actual marriage.

Those details are fairly important, since it turns out that Mr. Uzelac was convicted of molesting his stepdaughter for several years.  An even that, understandably, takes on a somewhat heightened significance when Ms. Perow gets pregnant and has . . . a daughter.

Mr. Uzelac and Ms. Perow separate, and then get divorced.  They share custody of the daughter, with Ms. Perow having primary custody.  Mr.  Uzelac gets custody of his daughter 7 to 12 hours a week, and Ms. Perow gets custody the rest of the week.  Fine.

A couple years later, Mr. Uzelac files a petition to change the custody arrangement to 50/50.  Thereby reducing his child support payments as well.

When Mr Uzelac filed his petition, can you guess what salient fact he neglected to mention to the Court?

Yes.  No mention of the fact that he was a convicted sex offender, nor the details of this offense.  Something that a trial court trying to figure out who should have custody of a daughter might want to learn about, no?

Ms. Perow opposes the petition and prevails.  And gets the attorney's fees she spent litigating the thing.  Nearly $150,000 worth.  "[B]ecause husband’s request for modification of the custody order had been 'fatally flawed from the outset because he did not disclose his status as a registered sex-offender,' and because husband had 'scuttled wife’s proposed settlement' at the last minute."

Plus, on appeal, Ms. Perow not only wins again, but orders that Husband pay her costs.

It's one little fact, that whole "sex offender" thing.  But it's a pretty important one.

Not something that you should leave out of your papers.

Dilberg v. California Check Cashing Svcs (9th Cir. - Jan. 29, 2019)

Sometimes it's difficult to be an attorney for an organization and to figure out how it should comply with relevant laws.

Sometimes it's not.

The Fair Credit Reporting Act (FCRA) says that if you're an employer who pulls a credit report on applicants for employment, you've got to make a particular disclosure to that applicant contained "in a document that consists solely of the disclosure.”

It's not hard to comply with that.  Make the relevant disclosure in a separate document.  Don't combine it with other stuff.  Use a separate piece of paper.

Sure, it kills some additional trees.  But that's clearly what Congress requires.

Not difficult.

If you fail to figure that out, you can be sued in a class action.

Which is a pain.  And kills a lot more trees.

So just put the thing in a separate document.  You'll be happy you did.

Karingithi v. Whitaker (9th Cir. - Jan. 28, 2019)

Serah Karingithi, a native of Kenya, overstayed her six-month tourist visa in 2006.  The United States eventually moved to deport ("remove") her in 2009.  She's been in the United States the whole time, including the resulting decade of various removal proceedings.  All of which have not gone well for Ms. Karingithi.

Given this lengthy history, it would surely be surprising indeed were the Ninth Circuit to have held that all these proceedings were for naught because the paper that notified her of the very first of them (in 2009) contained the location of the place at which she was required to appear and defend herself but listed the date and time as "TBA".  After all, she was informed of that time and date in a separate document, showed up, and also showed up at the plethora of later hearings.  Wouldn't it be crazy if the whole exercise as meaningless due to an alleged notice failure that didn't harm anyone?

Now, I know what you're thinking.  I'm going to say:  "Yet that's exactly what the Ninth Circuit held."

Nope.  The Ninth Circuit went the other way.

Which makes total sense.  To me, anyway.  As well as to the panel.  In the old days, there might be a more robust fight about whether the initial omission deprived the court of "jurisdiction" to hear the underlying removal petition.  But in the last decade or so, the Supreme Court (alongside lower federal courts) have been making foundational principles less and less formalistic.  Very few things are indeed "jurisdictional" anymore.

Today's case is but the latest example.

And, on this front, I'm not exactly shedding a tear.

A practical and common sense result.

People v. Martinez (Cal. Ct. App. - Jan. 24, 2019)

You give the police one story when they first question you.  Then they confront you with various pieces of evidence they've already obtained, and then you tell them a different story.

The second story's usually just as unpersuasive -- indeed, often even more so -- than the first one.  And typically just incriminates you even more.

Here, for example.

Just be quiet.  You're not going to help yourself.  Just the opposite.

Better yet, don't commit the murder in the first place.

People v. Taggart (Cal. Ct. App. - Jan. 23, 2019)

Hmmm.  I could come out either way on this one.

It's the ancient problem of how old language covers -- or doesn't cover -- new facts.

Moonshadow Taggart gets convicted of buying or receiving a stolen vehicle and gets sentenced to two years in county jail.  But a around six months before his release date, he gets released from jail pursuant to a program called "sheriff's parole" -- a term I haven't heard before, but that apparently exists.  Neither I nor the Court of Appeal knows precisely what "sheriff's parole" entails.  Footnote two of the opinion explains that "No party refers us to rules or regulations governing the Kern County sheriff’s parole program, and the program’s terms are not in the record."  But what we do know is that under this program, Mr. Taggart wasn't supposed to leave Kern County (or the state).

Which, of course, he subsequently did.  Hence the opinion.

Which revolves all around whether that counts as an "escape" from custody.

On the one hand, we wasn't allowed to leave the state, and he did.  So you could say that since he was subject to a certain degree to restrictions on his freedom, which he then violated, by doing so, he in essence "escaped" from that custody.

On the other hand, yeah, he had some limitations on his freedom, but he was basically at large in the population, rather than in "custody" (at least as we typically define the term).  We certainly wouldn't call it "escape" if someone on parole violated, say, a condition that said "Don't use drugs" -- that'd be a parole violation, but not an escape.  Unclear why violating this particular provision ("Don't leave the county.") suddenly counts as the much more serious offense of escaping from custody.

Given these competing principles, you can perhaps understand why there's a majority opinion and a dissent here.  The majority opinion (written by Justice Snauffer) says it's not an escape.  The dissent (Justice Levy) says it is.

No easy answer to this one.  We all know that a horse is a horse and a duck isn't a horse, but figuring out the precise contours of what's in the middle isn't always easy.

The same is true with respect to an "escape" from custody.

Zhang v. Jenevein (Cal. Ct. App. - Jan. 23, 2019)

Don't secretly record other people.

And don't be surprised that secretly recording other people isn't protected by the anti-SLAPP statute.

In re Volkswagen Clean Diesel Litigation (9th Cir. - Jan. 22 2019)

You're an attorney and, on behalf of your clients, you filed one of the many lawsuits against Volkswagen about its fake "clean diesel" claims.  The class action of the century.  The class eventually recovers a settlement of $10 billion.  You're going to make a mint, right?!

Wrong.

Because the overwhelming majority of these lawyers are not appointed class counsel.  So they do work.  Lots of it, allegedly.  After the settlement, these non-class lawyers file not one, not two, but 244 motions for attorney's fees.  Every single one of these lawyers wants to get paid.  Because the recovery is massive, right?  Their view is that they helped.

The district court refuses to give these counsel even a penny.

The Ninth Circuit affirms.

You know it's going to be a significant case when you scroll through the caption.  I've never seen one this big before.  Even on appeal, it's 35 pages long.  Just the caption.

Big case.  Big recovery.  For some.

Not so much for others.

Ricasa v. Office of Administrative Hearings (Cal. Ct. App. - Jan. 14, 2019)

Were I a professor employed by a University -- which, coincidentally enough, I am -- and had to plead guilty to (essentially) corruption, alongside being pilloried in the press as a participant in the "South Bay Corruption Scandal," I'm not sure that I'd care deeply about my particular status at the University.  More likely, I'd just feel pretty fortunate to still have a job.

But Arlie Ricasa feels otherwise.  She was at Southwestern College -- even serving as interim Dean at one point, apparently -- "until she was selected to serve as Southwestern's director of Student Development and Health Services (DSD), an academic administrator position."  A nice, tenured position.  But then, after that whole "pleading guilty" thing, she was "demoted . . . from an academic administrator position to a faculty position on the grounds of moral turpitude, immoral conduct, and unfitness to serve in her then-current role."  So she sues.

Personally, I wouldn't call being moved from "an academic administrator position to a faculty position" a "demotion".  I'd see it more like manna from the grace of God.  But, hey, that's me.  I'm reasonably confident that being an administrator at a University is one of the various circles of Hell. Whereas being a faculty member is reserved for reincarnated versions of Ghandi and the like. Maybe you won't accomplish much in this life, but hey, here's your reward for all those good deeds you did in your prior version.  Sit around and write and talk about whatever you feel like and get paid for it.  Enjoy.

But, again, that's just my personal take.  Plus, if I ever had a similar administrative position to Ms. Ricasa's, I'd be "Dean Martin."  Too weird.

Regardless, she files a writ, but loses.  Next time, maybe don't take that $1800 from a vendor (during business hours at Southwestern, no less) so your daughter can attend a "conference" st some fairly nice place, I imagine.  Then not report it.  Ain't going to look good on your resume.

Though, remember, you're still a faculty member.  So anything marginally bad you did in this life undoubtedly pales in comparison to (1) the rest of your cushy world, and (2) what got you there in the first place.

At least if you believe in that whole karma and reincarnation stuff.

None of which strikes me as true.  But still cool to think about.

In Re E.T. (Cal. Ct. App. - Jan. 10, 2019)

The Court of Appeal holds late today that this is "the rare case where the juvenile court erred in failing to recognize that Mother’s relationship with her children outweighed the benefit to the children that would accrue from termination of parental rights and a plan of adoption."  So it gives the kids back to the Mother.

Read the opinion.  Mother's got a lot of things going for her.  She's apparently working hard.

But there are several things against her as well.  Those are in the opinion as well.

Justice Siggins may be right that the children will be better off with Mother than with their godparents.  But he also may well be wrong.

It's difficult to square this opinion with the "substantial evidence" standard on appeal.  The trial court saw the witnesses.  A cold record is a pale substitute, especially in these types of cases.

I hope that Justice Siggins is right.  I hope we never see this family back in court.  I hope the kids don't end up being taken away (yet again) from Mother.

But I'm not supremely confident that's how things will in fact play out.

Here's hoping for a good result.

U.S. v. Torres (9th Cir. - Jan. 8, 2019)

Welcome back, Ninth Circuit!

After a virtual hiatus for nearly two weeks, a Ninth Circuit panel finally publishes an opinion this morning.  And it's a goodie!

Amongst other questions raised, but not decided, by the opinion are whether aliens who are in the United States without authorization are included in the phrase "the people" to whom various rights are given under the Constitution.  Interesting stuff.

It's also a case that splits the left-right spectrum.  On the one hand, it involves whether unauthorized aliens have various rights.  On that question, conservatives generally like to say "No," whereas those on the left generally like to say "Yes."

But in this case, the right in question is the Second Amendment right to possess a gun.  When that's the right at stake, conservatives generally are in favor of it, whereas those on the left are generally opposed.

So what say ye?  Federal law makes it illegal for an unauthorized aliens to possess a weapon.  A violation of the Second Amendment, or not?

The Ninth Circuit says -- correctly, in my view -- that the statute's valid.  The panel assumes without deciding that the Second Amendment applies.  But holds that under intermediate scrutiny (which I agree is the proper standard here), the statute's valid because it advances an important governmental interest with a reasonable fit.  In the words of the Ninth Circuit -- largely quoting from other circuit authorities:

“The [government] has the important government interest of ensuring the safety of both the public and its police officers. . . . These government interests are particularly applicable to those subject to removal. “[T]hose who show a willingness to defy our law are . . . a group that ought not be armed when authorities seek them.” Huitron-Guizar, 678 F.3d at 1170. If armed, unlawful aliens could pose a threat to immigration officers or other law enforcement who attempt to apprehend and remove them. Further,“[unlawful aliens] often live ‘largely outside the formal system of registration, employment, and identification, [and] are harder to trace and more likely to assume a false identity.’” Meza-Rodriguez, 798 F.3d at 673 (quoting Huitron-Guizar, 678 F.3d at 1170). Therefore, “the ban on the possession of firearms by [unlawful aliens] is substantially related to the statute’s general objectives because such persons are able purposefully to evade detection by law enforcement.” Id."

Good to have the Ninth Circuit back.  Glad to see it begin 2019 with a bang.

Strawn v. Morris, Polich & Purdy LLC (Cal. Ct. App. - Jan. 4, 2019)

The Ninth Circuit continues its apparent vacation -- only one published opinion since December 28, 2018 -- but. fortunately, the California Court of Appeal continues to crank things out.

This opinion takes a very restrictive view of the litigation privilege.  I'm not saying that Justice Kline is wrong in that regard; this is a demurrer after all, and it may well be appropriate to wait until the summary judgment stage to decide whether there was "really" a threat of litigation here sufficient to establish the privilege.

But, on these facts, I gotta say, I'm much more confident that there was in fact a privilege than Justice Kline appears to be.  Yeah, the insured hadn't yet filed a lawsuit, or expressly said he was going to do so.  But the guy's property burned down, the guy was being criminally investigated for arson, and the insurance company was thinking about not paying due to arson.

There's no doubt whatsoever in my mind that, on these facts, the insurance company knew full well that there was not only a likelihood of litigation if it denied the claim on the basis of arson, but that there was a super high likelihood of litigation.  Of course the guy's going to sue if you don't pay him (and he's not eventually convicted of arson).  Why wouldn't he?  No doubt whatsoever.

Hence the privilege.

Justice Kline's opinion seems to hint that something more might be required.  Which I'm not certain is true.  On these facts -- at least at the summary judgment stage -- I have extraordinarily little doubt as to how I'd come out on whether the litigation privilege applies.

Because I'm confident that the insurer both recognized and fully anticipated the threat of litigation.

As would any insurance company not staffed by morons.

Doe v. Allee (Cal. Ct. App. - Jan. 4, 2019)

This is another Title IX sexual assault hearing case.  This time involving USC.  Another holding that the University's hearing procedures are fundamentally unfair.

As for the particular offense here, it's another profoundly troubling set of facts.  Read the whole thing for the graphic details.

You can't figure out from a cold appellate record, of course, whether the alleged victim or perpetrator is more credible.  But there are nonetheless some undisputed facts here that, in my view, make the alleged perpetrator -- in this case, a member of the USC football team -- look particularly bad.

To take but one example, the alleged victim stated that during the nonconsensual encounter (the victim alleged that she was held down, etc. etc.), "Doe pulled out to finish and it looked like he planned to ejaculate on her face or torso. When he let go of her, Roe “freaked out [and] went between his legs, scooting out quickly.” Doe ejaculated on the sheets."  The alleged perpetrator's version of these particular details is only slightly different:  "Regarding the October 24 sexual encounter, Dr. Allee asked how Doe knew Roe wanted him to pull her hair, to which Doe responded, “I didn’t. We were in doggy position. I just assumed she’d like it.” Similarly, when asked how he knew Roe wanted to swallow his ejaculate or to have him ejaculate on her face, Doe said, “I didn’t, but if she didn’t want to she could get out of the way and she did.”

That last part doesn't sound like someone profoundly concerned about consent.

USC ends up finding the victim more credible and expels the alleged perpetrator.  The Court of Appeal decides that the University's system was fundamentally unfair, so reverses the finding of sexual assault and expulsion on that basis.

But halfway through the opinion, there's this nugget.  Which, though perhaps technically irrelevant to the issue of credibility, is definitely something of which the reader takes notice:  the fact that, after his expulsion, the alleged perpetrator was apparently "charged with committing several felonies near USC, and, in April 2016, sentenced to six years in state prison, a sentence he was serving when the petition was heard. In August 2016, Doe was expelled for independent violations of the SCC [and] as a result . . . regardless of this Court’s decision, Doe is no longer eligible to return to USC."

Another fact which, if true, doesn't say particularly positive things about Mr. Doe.  (Here's a couple of public links that relate to a particular USC football player).

Yu v. Liberty Surplus Ins. Co. (Cal. Ct. App. - Jan 4, 2019)

There's nothing from the Ninth Circuit yesterday or today.  But the California Court of Appeal steps up to the plate, and this afternoon published an opinion with a very helpful -- and easily remembered -- pointer for civil litigants.

When you're drafting a complaint (or, as here, a cross-complaint), do not ask for damages "according to proof".  Ask for a particular number.  Otherwise, even if you obtain a default judgment, it won't stick.

Words to the wise.

Brown v. Mortensen (Cal. Ct. App. - Jan. 3, 2019)

I'm sure that trial judges appreciate it when the Court of Appeal expressly recognizes that the work performed below is (1) important, and (2) doesn't always have the same inputs as the particularized efforts undertaken on appeal.

So, in this opinion, Judge Wiley (from Los Angeles) gets reversed.  I'm sure he's not ecstatic about that.  But that he nonetheless appreciates the opening two paragraphs of Justice Currey's opinion:

"This case resolves two obscure and previously unaddressed state constitutional issues: Does article I, section 16 of the California Constitution guarantee the right to a jury trial for (1) nominal statutory damages claims, and/or (2) claims for attorneys’ fees, under the Confidentiality of Medical Information Act (CMIA) (Civ. Code, §§ 56 et seq.1)?

With little useful guidance from the parties, no controlling precedent, and the three-year post-remittitur deadline for bringing the case to trial about to expire, the experienced and highly regarded trial judge concluded it does neither. With more time to reflect, further development of case law, and some modest additional input from the parties, however, we reach a different conclusion. We hold that jury trial is guaranteed for CMIA’s nominal statutory damages claims brought before 2013 under section 56.36, subdivision (b)(1), but not for attorneys’ fees claims under section 56.35. We therefore reverse the trial court’s judgment (which was entered after a bench trial) and remand for jury trial on both the nominal statutory damages claims and a remaining compensatory damages claim."

Wholly apart from the Court of Appeal's expressly laudatory statement about Judge Wiley ("the experienced and highly regarded trial judge"), the Court of Appeal also recognizes that the issue was a complex one and the procedural setting of the dispute far from ideal.

In short, if you're a trial judge who's going to get reversed by the Court of Appeal, something like this is probably how you want it to happen.

Lief v. Superior Court (Cal. Ct. App. - Jan. 2, 2019)

It's a Tale of Two Cities in the California judiciary as we begin 2019.

The one published opinion from the Ninth Circuit thus far is this one -- an 86-page, single-spaced tome from the en banc court that's all about how much in attorney's fees someone gets from being wrongfully included on the federal government's "no fly" list.  Is it $125/hour (the usual cap)?  More because the government litigated in bad faith? Should the hours spent on one claim be recoverable when granting relief on a different claim made that claim moot?  The Ninth Circuit waxes poetic on these and other issues in 86 dense pages that includes a partial dissent.  Big, fat reading.

Meanwhile, on the California state side, the only thing published we have is this one.  It's four pages.  Double spaced.  That basically says as fast as one can say it that when there's a 30-day stay on move-away orders (here, letting one divorced parent move to Israel with the kids), that actually means 30 days. Not 15.  Not exactly dense reading.  Extraordinarily straightforward.  (Indeed, once the Court of Appeal decided to hear the writ and stayed the trial court's order, the prevailing party stipulated below that she wouldn't leave until the 30 days expired on December 7, 2018. So the whole thing's sort of moot at this point. But the Court of Appeal nonetheless issued its opinion on December 6th and then published it today.)

So choose your poison in 2019.  Want to read an incredibly complicated, lengthy opinion about which multiple people disagree?  Or a nice little short one that's pretty simple?

Up to you.